Court Upholds Firing of ‘Touchy/Feely’ Supervisor

(CN) - The Federal Circuit upheld the firing of a Defense Department supervisor who argued that his sexual remarks and uninvited physical contact with women were "harmlessly amorous" and stemmed from his decade-long immersion in Italy's "touchy/feely" culture.

The Defense Logistics Agency fired Thyrman Smiley from his supervisory position in Pennsylvania in 2009. According to the ruling, female employees claimed 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 Merit Systems Protection Board affirmed the firing after an investigation "unearthed detailed recollections from the women in question recounting the occasions on which Mr. Smiley had made unwanted physical contact or directed sexual comments to them," the ruling states.

In his defense, Smiley, who described himself in his brief as "charismatic, likeable, hard working, [and] harmlessly amorous," argued that 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."

Smiley also claimed that the agency had coerced employees into portraying him as a "monster," pointing to statements made by other employees that "they had never heard Mr. Smiley make any sexual statements."

The panel was unconvinced, however, and upheld the board's decision.

"At the end of the day, the deciding official concluded that the nature of the offenses, his lack of trust in Mr. Smiley's ability to act as a supervisor, and Mr. Smiley's slim chance for rehabilitation counseled in favor of removal as the appropriate penalty," the three-judge panel concluded.

"The testimony of the women involved ... belies his claim to being harmlessly amorous, and the record is devoid of evidence to support a charge that the agency coerced anyone to testify against him."

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