The “I Used to Live in Italy” Defense Doesn’t Hold Up

A federal employee said he had lived in Italy for 10 years and the culture was more “touchy/feely” after he was in trouble for unwanted physical contact with women. He rejected a “last chance agreement” with his agency as “too onerous.” He is now a former federal employee after a recent court decision.

The defense that he lived for ten years in “touchy/feely” Italy did not help a fired federal supervisor win his job back. (Smiley v. Department of Defense, C.A.F.C. No. 2010-3039 (nonprecedential), 10/12/10)

The Defense Logistics Agency fired Thyrman F. Smiley, a Supervisory Supply Technician in New Cumberland, Pennsylvania, for conduct unbecoming a supervisor and conduct unbecoming a work leader.

Following a report by a co-worker that he had seen Mr. Smiley “rubbing the shoulders” of a female worker, the agency investigated. As a result several women recounted the many occasions that Smiley had “made unwanted physical contact or directed sexual comments to them.” (Opinion p. 2)

Testimony from other co-workers was mixed. Some said they had never heard Smiley make suggestive statements to the women workers. Others said Smiley engaged in “locker room” talk with male employees, commenting in explicit sexual terms about the women co-workers. (p. 3)

After a “thorough Douglas factors analysis,” the deciding official found both charges sustained and ordered up Smiley’s removal, pointing to the serious nature of the offenses and the “fact that such charges undermine [his] ability to be a supervisor.” (p. 3)

The deciding official offered Smiley a last chance agreement because he concluded there was a chance, albeit slim, of Mr. Smiley being rehabilitated. However, Smiley rejected the last chance agreement as “too onerous.” (p. 3)

At a Merit Systems Protection Board hearing in Smiley’s appeal, the two women co-workers stood by their statements to agency investigators. Smiley admitted rubbing one woman’s shoulders, but denied the rest of the allegations. He offered up an explanation for the shoulder-rubbing—he testified that for ten years he had lived in Italy, a “different culture” where people “express themselves with their hands a lot,” a practice that he finds himself “doing it even today.” (p. 4)

The Administrative Judge placed more credibility in the testimony of the women as well as that of several male co-workers including some that Smiley himself called as witnesses who acknowledged the locker room talk. The AJ sustained the charges and the firing.

Smiley took his case to the federal appeals court where he has recently fared no better. He argued that the AJ erred in giving more credibility to the other witnesses than to his testimony, that the charges did not appear on the agency’s table of penalties, and that the Douglas factors had been misapplied by the deciding official. His third argument apparently hinged on the fact that the agency discounted factors favorable to him. In particular, Smiley argued he should have been given credit “for an ‘unusual’ mitigating circumstance” of having lived in Italy “where it was customary for people to be ‘touchy/feely’ with each other.” (p. 7)

In short, the court did not agree with any of Smiley’s arguments and sustained the agency and the MSPB, referring to Smiley’s conduct as a supervisor as “wholly inappropriate” and undermining “his trustworthiness and ability to perform the duties required by his position.” (p. 7)

Maybe that last chance agreement wasn’t so onerous after all?

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.