Michael J. BROWN, Petitioner, v. DEPARTMENT OF THE NAVY, Respondent, 229 F.3d 1356

Opinion for the court filed by Circuit Judge BRYSON. Dissenting opinion filed by Circuit Judge LINN. BRYSON, Circuit Judge. Based on a charge of improper personal conduct, Michael J. Brown was removed from his civilian position with the Marine Corps. Mr. Brown appealed his removal to the Merit Systems Protection Board, which upheld the action. Before this court, Mr. Brown contends that the Corps failed to establish a sufficient nexus between the charged off-duty misconduct and the efficiency of the service, and that the penalty of removal was unjustified. We affirm.

I In 1995, after leaving active duty as a Marine Corps officer, Mr. Brown joined the reserves and secured a civilian position with the Marine Corps at Camp Lejeune, North Carolina. He served as area program manager for the Morale, Welfare, and Recreation Department (MWR) at the base. MWR programs provide service members and their families with a variety of services including athletic, recreation, and entertainment activities. An area program manager plans, develops, and coordinates MWR activities for the military personnel assigned to the area. In 1997, Mr.

Brown was removed from his position based on the charge that he had engaged in improper personal conduct having an adverse effect on the efficiency of the service. Specifically, the removal notice charged that Mr. Brown had engaged in an adulterous relationship with the wife of a Marine major assigned to a unit supported by Mr. Brown while the major was deployed overseas. Following his removal, Mr. Brown appealed to the Merit Systems Protection Board. An administrative judge conducted a hearing and sustained the removal action.

The administrative judge found that the affair had occurred as alleged and that the Corps had established a sufficient nexus between Mr. Brown’s misconduct and the efficiency of the service. In particular, the administrative judge found that Mr. Brown’s misconduct was antithetical to MWR’s mission and that it had adversely affected the Corps’ trust and confidence in Mr. Brown’s job performance. The administrative judge also concluded that the removal penalty was within the limits of reasonableness. Mr. Brown petitioned the Board for review of the initial decision.

The Board denied the petition over a dissent from Vice Chair Slavet, who stated that in her view the Corps had not sustained its burden of showing by a preponderance of evidence that there was a nexus between Mr. Brown’s misconduct and the efficiency of the service. II An agency may remove an employee only for such cause as will promote the efficiency of the service. 5 U.S.C. § 7513(a).

To satisfy that requirement, the agency must show by preponderant evidence that there is a nexus between the misconduct and the work of the agency, ie., that the employee’s misconduct is likely to have an adverse impact on the agency’s performance of its functions. See, e.g., Mings v. Dep’t of Justice, 813 F.2d 384, 389-90 (Fed.Cir.1987). A Because the underlying historical facts relating to Mr. Brown’s misconduct are uncontested on appeal, Mr. Brown contends that we should review de novo the Board’s decision that the Corps has established a nexus between his conduct and the efficiency of the service.

In fact, however, the statutory standard that governs our review of decisions of the Merit Systems Protection Board, 5 U.S.C. § 7703(c), requires that we apply deferential review to determinations by the Board as to whether such a nexus has been shown. See Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984) (It is not our duty to find nexus but rather to decide, under our statutory scope of review in 5 U.S.C. § 7703(c), whether the MSPB affirmance of the agency conclusion on the nexus issue meets the statutory criteria for our affirmance.); see also White v.

United States Postal Serv., 768 F.2d 334, 336 (Fed.Cir.1985) (A determination of nexus, one factor in a removal decision, must be affirmed on appeal if supported by substantial evidence.). Absent a mistake of law by the Board in selecting the proper test for analyzing the nexus requirement, which is not present here, we must uphold the Board’s nexus finding if it is supported by substantial evidence. B Mr. Brown asserts that the evidence was insufficient to show that his misconduct adversely affected either MWR’s mission or his ability to perform his job.

With respect to the relationship between his misconduct and the department’s mission, Mr. Brown argues that his job involved planning and facilitating recreation and entertainment, not assisting Marines and their spouses on personal or family-related problems, and that his misconduct was irrelevant to the task of providing recreation and entertainment to Marine families. Based on evidence adduced at an eviden-tiary hearing, the administrative judge found that the purpose of [Mr.

Brown’s] position, and the MWR Department, was to provide support for the Marines, and the families of those Marines while they are deployed, that Mr. Brown’s adulterous affair involved the wife of a Marine officer assigned to one of the units that Mr. Brown was charged with supporting, and that the affair occurred during a period that the officer was deployed overseas. Those findings provided the basis for the administrative judge’s conclusion that Mr. Brown’s misconduct was antithetical to the agency’s very mission, ie., that there was a sufficient nexus between Mr.

Brown’s misconduct and the mission of the MWR department where he worked. As the administrative judge put it, the Corps should not have to retain an employee who instead of assisting its deployed Marines, as is the purpose of the MWR and the Program Manager position, has an adulterous affair with the wife of one of those very Marine officers. The administrative judge’s findings regarding the mission of the MWR department and Mr. Brown’s responsibilities as program manager were supported by the mission statement of MWR and testimony from several persons familiar with the program.

The mission statement, taken from the MWR Policy Manual, stated that MWR was responsible, in part, for providing military families with well-rounded, wholesome athletic, recreation leisure time activities to ensure their mental, physical, and social well-being; and for providing dining, beverage and entertainment services.

An MWR operations officer testified that the program manager was responsible for supporting deployed Marines’ families in a variety of ways, including arranging recreation and entertainment events, assisting with events sponsored by Marine spouse volunteers, and attending meetings with various groups. A commander’s wife, who coordinated a volunteer family-support program staffed by the spouses of Marines, testified that one of the responsibilities of the MWR program manager was to support her program, which involved substantial contact with Marine spouses. The administrative judge’s findings that Mr.

Brown’s misconduct adversely affected MWR’s ability to perform its mission and undermined management’s trust and confidence in his job performance were based on evidence provided by five witnesses who testified at the hearing. The MWR operations officer testified that Mr. Brown’s misconduct had undermined the credibility of MWR among the units it was assigned to support, which was very damaging to MWR and to the job [Mr. Brown] was hired to do.

The base volunteer coordinator testified that she and other Marine spouse volunteers worked with the MWR program manager, that the purpose of her volunteer program was to promote a healthy community among the Marine families, and that conduct such as Mr. Brown’s would threaten her program by put[ting] it in a less than favorable light.

The Assistant Chief of Staff of the MWR division testified that program managers have regular contact with the wives of deployed marines in their capacity as volunteer workers, and that it was important for deploying Marines to be confident that their families would be well cared for while they were away, a task that was partly the responsibility of MWR program managers. To ignore conduct such as Mr. Brown’s, he testified, would undercut the integrity of the organization. He further testified that a commander who learned of Mr. Brown’s misconduct would likely come to him and request that Mr.

Brown not associate with his personnel in the future, and that he did not think any commander would allow [him] ... to put Mr. Brown back down into one of the program manager positions. When asked about the effect of Mr. Brown’s conduct on his efficiency in his position, he explained that Mr. Brown would not be efficient at all. There will practically be no job because I don’t believe people will turn to him for the support they would have turned to him [for] had ... this thing not happened.

The family readiness officer for one of the Marine Expeditionary Units (MEUs) stationed at the base testified that it was important for deployed marines to trust the MWR program managers, because from their point of view, if they’re out there, they should think that people back here, particularly males working with their spouses or involved in activities with their spouses are being professional. And a commander of one of the MEUs at the base testified that if commanders bypassed the MWR program manager, it would degrade the efficiency of the MWR operation. In his own testimony, Mr.

Brown stated that he circulated among his patrons in order to provide quality customer service, a function that would be jeopardized if many patrons did not want to interact with him, and that he served all kinds of patrons including individual Marines, commanders, retirees, volunteers, and family members. He also admitted that he spent a significant portion of his time meeting with volunteers, and that he had attended some of the functions he planned. Mr. Brown also acknowledged that the units in his area of responsibility were not required to use his services.

The witnesses emphasized the special circumstances that made Mr. Brown’s misconduct especially troubling in light of the role of MWR in general and the program manager’s position in particular. The MWR operations officer testified that the critical factor in this case, in his view, was that the woman with whom Mr. Brown became involved was married to a Marine in one of the units that Mr. Brown was charged with supporting.

He testified that the program manager was responsible for supporting the Marine families when the Marines were deployed, and that a commander of the deployed units has to know that he can trust the people who are back here with these families. His marines and sailors can’t do their jobs very well if they know there’s someone not very trustworthy back there. He further explained that Mr. Brown’s job was to make sure that the dependents of the members who were deployed were taken care of. And that didn’t happen. The case would have been quite different, he testified, if Mr.

Brown had not held a position of trust or if he had had his affair with someone who was not the wife of a Marine in one of the units he was charged with supporting. We hold that substantial evidence supports the administrative judge’s finding of a nexus between Mr. Brown’s misconduct and both the mission of his agency in general and his job responsibilities in particular. To be sure, this case is a difficult one because the misconduct was private in nature and did not affect Mr. Brown’s official responsibilities in any direct and obvious way.

In many settings, such conduct would not be sufficient to justify removal from a civil service position. As the administrative judge found, however, Mr. Brown’s position was not an ordinary one. He held a managerial position in an office that was responsible for providing support to Marine families, including the families of Marines who were deployed overseas.

The evidence supported the administrative judge’s conclusion that, in light of MWR’s responsibilities to the Marine families it served, the trust and confidence of the Marine families and the Marine commanders served by MWR was essential to MWR’s proper functioning and to Mr. Brown’s performance of his duties within MWR. The evidence further supported the administrative judge’s finding that the necessary trust and confidence was undermined by conduct of the sort at issue in this case — initiating an adulterous affair with the wife of a deployed Marine who was a member of a unit that Mr.

Brown was directly responsible for supporting. Based on the particular context in which this case arose and the evidence presented to the administrative judge, we cannot agree with Mr. Brown that the administrative judge’s nexus finding is unsupported by substantial evidence. In other settings, off-duty misconduct has been held sufficient to justify an employee’s removal where that misconduct was found to be inconsistent with the mission of the employing agency. For example, in Allred v.

Department of Health & Human Services, 786 F.2d 1128 (Fed.Cir.1986), this court upheld the removal of an HHS accountant who was convicted of child molestation. The court noted that the mission of HHS is to administer health and social services to various classes of disadvantaged persons, including children, and the agency offered evidence that the victim of Mr. Allred’s offense was the kind of person the agency was attempting to help. In that context, where the agency presented evidence that the misconduct was contrary to the agency’s mission and that Mr.

Allred’s supervisors had lost confidence in him, the court held that the agency’s evidence was sufficient to justify removal. See 786 F.2d at 1131. In another case, Giles v. United States, 213 Ct.Cl. 602, 553 F.2d 647, 650 (1977), our predecessor court held that the Internal Revenue Service could fire a revenue officer for failing to file timely federal and state income tax returns.

Testimony that such conduct would have a deleterious effect upon the morale of other IRS personnel and upon the respect which other Government agencies and the public had for IRS, was sufficient, the court explained, to support the employee’s removal. 553 F.2d at 650. Similarly, the private use of marijuana was held sufficient to justify the removal of a Customs Inspector, based on the mission of the Customs Service, which is in part to interdict the importation of illegal drugs. See Masino v. United States, 218 Ct.Cl. 531, 589 F,2d 1048, 1056 (1978).

And an employee of the Department of Housing and Urban Development was held to have been validly removed based on his ownership of deteriorated rental properties on the ground that his conduct undermined public confidence in the agency. See Wild v. United States Dep’t of Housing & Urban Dev., 692 F.2d 1129, 1132-34 (7th Cir.1982). Although Mr.

Brown’s case is distinguishable on its facts from each of the cited cases, the principle applied in each is. the same: off-duty conduct that is inconsistent with the agency’s mission and that undermines confidence in the employee can be sufficient to justify the employee’s removal. C Mr. Brown makes a number of arguments about why the evidence of nexus in this case was insufficient. None of the arguments, however, persuades us that the Board’s finding of nexus must be overturned. First, Mr. Brown argues that he had known the woman with whom he had the affair since before becoming the program manager of MWR.

Thus, he contends, he did not use his position in MWR to enter into an adulterous affair with a Marine wife. Nonetheless, the affair occurred while Mr. Brown was serving as the MWR program manager and while the woman’s husband — a member of a unit Mr. Brown served — was deployed overseas. To be sure, the case for nexus would have been stronger if Mr. Brown had directly used his position to obtain access to a Marine wife with whom he then started an affair. But the fact that the relationship did not develop as a direct result of Mr.

Brown’s activities as program manager of MWR does not affect the loss of confidence and trust in him as a person responsible for the morale and welfare of Marine families, nor does it eliminate the concern over the inconsistency between his conduct and the mission of his agency. Mr. Brown makes the related argument that in light of the unusual circumstances surrounding his affair, he is no more likely than anyone else to have an affair in the future with the spouse of a Marine he is charged with supporting. But there is no requirement that the agency prove that particular misconduct is likely to recur.

See Yacovone v. Bolger, 645 F.2d 1028, 1033 (D.C.Cir.1981). In any event, the evidence established that Mr. Brown’s misconduct violated the mores of the Marine community, and it is not irrational to conclude from that fact alone that those mores have less coercive power over him than over others. In light of the fact that Mr. Brown’s position involved more than minimal contact with Marine spouses, it would not be unreasonable to conclude that Mr. Brown posed a greater-than-average risk of future, job-related misconduct, and that such misconduct could again cause problems for MWR. Second, Mr.

Brown points out that the Corps failed to elicit specific testimony from Mr. Brown’s patrons that they would no longer use his services. Nonetheless, we cannot say that the administrative judge’s finding to that effect was unsupported by substantial evidence. The deciding official, who oversaw MWR, testified about his prior experience as a unit commander. His testimony that unit commanders would not want their units dealing with Mr. Brown, which was unrebutted by any evidence or cross-examination from Mr. Brown, reasonably supported the administrative judge’s finding.

In addition, the MEU commander testified that conduct such as Mr. Brown’s would leave a bad taste in everyone’s mouth, and that a commander could bypass the services of a program manager, which would degrade efficiency. The commander’s ' testimony was not inconsistent with that of the deciding official, which was sufficient on the issue. Third, Mr. Brown argues that his job performance was not affected by his off-duty misconduct. Management, however, was concerned not about a deterioration in Mr. Brown’s actual performance, but about a loss of confidence in MWR and in Mr.

Brown due to his patrons’ knowledge of the affair. As this court explained in the Allred case, where an employee’s conduct is contrary to the agency’s mission, the agency need not present proof of a direct effect on the employee’s job performance. 786 F.2d at 1131. Finally, Mr. Brown complains that he was held to a military, rather than civilian, standard of conduct. In support, he cites the testimony of the deciding official, who stated that civilian employee[s], in my estimation, are expected to uphold really the same standards because they are people standards, they’re human standards. Contrary to Mr.

Brown’s suggestion, the mores of the group he served are not irrelevant to his job performance and the expectations fairly placed upon him. Conduct that might be overlooked in some settings can be the cause for removal in other settings in which the conduct is perceived as more clearly inappropriate or contrary to the mission of the employing agency, such as in the Allred, Masino, Giles, and Wild cases cited earlier.

In each of those cases, removal was based in large part on the nature of the particular agency involved; conduct that justified removal in those contexts might not have justified removal in ordinary settings. Mr. Brown’s job responsibilities were to serve the Marine community, and his effectiveness depended at least to some extent on his compliance with certain basic standards of conduct shared by that community. Moreover, he chose to serve the Marine community, and because of his long membership in and association with that community, he was well aware of the standards of that community.

Because his job was to serve the Marine community, it is not a sufficient answer for him simply to say that he was a civilian employee and therefore the standards of conduct of the Marine community had no applicability to him. In various of the arguments he makes, Mr. Brown relies on the dissenting opinion of Board Vice-Chair Slavet. While we acknowledge that there is force to many of the points made in Vice-Chair Slavet’s opinion, it is important to note that our posture in reviewing the Board’s decision is quite different from that of the Board in making it.

The task of the Board is to decide whether the agency met the burden of proving a nexus by a preponderance of the evidence. See 5 U.S.C. § 7701(c)(1)(B). Our task, by contrast, is to determine whether the Board’s finding is supported by substantial evidence, which is a considerably less exacting standard. See, e.g., Schnakenberg v. United States, 219 Ct.Cl. 697, 698 n. 1, 618 F.2d 120 (1979) (substantial evidence can support either of two contrary findings, but only one finding can have a preponderance).

Regardless'of whether we would have resolved this case as the Board did if we had sat as the finders of fact, we are unable to say that substantial evidence does not support the finding made by the Board. Ill Mr. Brown contends that even if the government proved a sufficient nexus in this case, the penalty of removal was unjustified. In upholding the penalty, the administrative judge noted that the deciding official had considered the factors set forth in Douglas v. Veterans Administration, 5 MSPB 313, 5 M.S.P.R. 280 (1981).

The administrative judge concluded that the deciding official had considered the appropriate factors and had not reached an unreasonable conclusion as to the choice of penalty in light of those factors. Mr. Brown’s principal contention in challenging the penalty is that he never received notice that his civilian employment could be affected by an adulterous affair with a Marine spouse. In that regard, the deciding official found that Mr. Brown’s status as a major in the reserves provided sufficient notice; Mr. Brown thinks that status was insufficient to warn him of the consequences for his civilian job.

The lack of formal notice concerning the adverse effects of an adulterous affair with the spouse of a Marine does not rise to the level of a significant mitigating factor that MWR and the Board failed to consider. Mr. Brown’s military background and position within a military community should have put him on notice that the affair could cause serious problems within the community. As this court noted in Brown v. Department of Transportation, 735 F.2d 543, 548 (Fed.Cir.1984), even if MWR did not provide an express warning to Mr.

Brown regarding the consequences of an adulterous affair with a Marine spouse, his common sense should have forewarned him. The same analysis pertains to Mr. Brown’s related contention that the penalty of removal was inappropriate because of the unique or exceptional nature of this case. Cases involving off-duty misconduct often involve unusual facts that arise in a specific context, and the particular circumstances and context are often sufficiently distinctive that there are no closely analogous cases in which similar action has been taken.

The fact that there may be no direct precedent for the action taken in a particular case does not, however, prohibit the agency from taking adverse action if it is consistent with general principles of federal employment law. We are satisfied that the agency’s action in this case did not depart from those principles so as to render the penalty invalid. In reviewing the propriety of a penalty, this court necessarily accords considerable discretion to the agency.

We will not overturn a penalty within the agency’s discretion unless the severity of the agency’s action appears totally unwarranted in light of all the factors. Mings, 813 F.2d at 390. Given the totality of the circumstances of this case, Mr. Brown has not persuaded us that his removal was totally unwarranted, and we therefore uphold the agency’s action. Each party shall bear its own costs for this appeal. AFFIRMED.