Kenneth B. Adkins v. Department of Defense
Background
- Appellant Kenneth Adkins, WG-04 Store Worker in Sasebo, Japan, faced a removal for conduct unbecoming based on 10 specifications from three female coworkers.
- The agency relied on unsworn and sworn statements from the three women and the appellant’s supervisor; appellant provided defenses and supporting statements.
- Initial decision found credibility in the women’s statements over the appellant’s explanations and sustained the removal.
- No hearing was held; the AJ issued a written initial decision based on the record, including witness statements and trainer/employee policies.
- The Board denied the petition for review, affirming the removal and rejecting discrimination and procedural arguments.
- The Board found the removal within the bounds of reasonableness after weighing aggravating and mitigating factors under the Douglas framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the agency’s charge proven by preponderant evidence? | Adkins | Agency | No reversible error; findings supported by record. |
| Did Adkins establish discrimination or harmful error defenses? | Discrimination based on race/national origin | Discrimination not proven | Discrimination defenses not proven. |
| Is removal a reasonable penalty under Douglas factors? | Mitigating factors outweighed | Aggravating factors outweigh mitigation | Removal within bounds of reasonableness. |
| Did agency properly follow policy, procedures, and warning requirements? | Procedural/policy deviations alleged | Procedures followed; warning adequate | No reversible procedural error; warning not required. |
Key Cases Cited
- Crosby v. U.S. Postal Service, 74 M.S.P.R. 98 (1997) (eschews improper weight given to evidence; review limited to record taken as whole)
- Batts v. Department of the Interior, 102 M.S.P.R. 27 (2006) (removal often upheld for serious misconduct)
- Viens v. Department of the Interior, 92 M.S.P.R. 256 (2002) (carries factors for weighing penalty)
- Cisneros v. Department of Defense, 83 M.S.P.R. 390 (1999) (penalty within bounds; evidence of aggravation/mitigation)
- Pugh v. U.S. Postal Service, 20 M.S.P.R. 326 (1984) (prior cases on disciplinary penalties)
- Savage v. Department of the Army, 122 M.S.P.R. 612 (2015) (discrimination defense burden and weighing test)