Opinion

Robbie Hall v. Department of the Treasury

Court: Merit Systems Protection Board
Filed: Jun 14, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 17.8%

discussing when ex parte concerns arise in connection with an adverse action

How later courts described this case

discussing when ex parte concerns arise in connection with an adverse action

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBBIE HALL, DOCKET NUMBER

Appellant, DA-0752-18-0472-I-1

DEPARTMENT OF THE TREASURY, DATE: June 14, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant.

Thomas M. Ashton and Brady J. Kiehm , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained his removal. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

supplement the administrative judge’s analysis of the appellant’s disparate

penalty claim, we AFFIRM the initial decision.

BACKGROUND

The essential undisputed facts, as set forth in the initial decision, are as

follows. The appellant was formerly employed by the agency as a Criminal

Investigator with the agency’s Inspector General for Tax Administration

(TIGTA), Office of Investigations. Initial Appeal File (IAF), Tab 25, Initial

Decision (ID) at 2. On May 24, 2018, the agency proposed his removal based on

a charge of conduct unbecoming a Federal employee, supported by

four specifications. Id. at 2-3. In specification one, the agency alleged that the

appellant stated to a coworker, C.C., with whom he had a prior romantic

relationship, that he had thought about killing her by shooting her through the

windshield while she was pulling out from the driveway. Id. at 4-5. In the

remaining specifications, the agency alleged that the appellant attempted or

threatened to use his position as a TIGTA agent to coerce or influence his

coworker to maintain their personal relationship. Id. at 7-8. After affording the

appellant an opportunity to respond, the agency sustained the charge and removed

the appellant from service, effective July 9, 2018. Id. at 2.

The appellant filed a Board appeal in which he disputed the charge and

asserted that the agency had violated his due process rights. IAF, Tab 1. After

holding a hearing, the administrative judge issued an initial decision sustaining

the charge. ID at 1. The administrative judge found that the agency proved all

four of the specifications in support of its charge. ID at 3-13. She further found

that the appellant failed to prove his affirmative defense of due process violations

and that the agency proved nexus and that the penalty of removal was reasonable.

ID at 13-25.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 3. The agency has opposed the appellant’s petition. PFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly found that the agency proved its charge.

On review, the appellant has not identified any specific errors in the

administrative judge’s analysis concerning the agency’s proof of its charge.

Thus, the Board will not embark upon a complete review of the record. See

Baney v. Department of Justice, 109 M.S.P.R. 242, ¶ 7 (2008); Tines v.

Department of the Air Force, 56 M.S.P.R. 90, 92 (1992); 5 C.F.R. § 1201.115(a)

(2). Rather, regarding specification one, the appellant merely reiterates his

arguments that the agency improperly construed his statement as a threat and

failed to take into account the context, intent, and meaning of his words. PFR

File, Tab 3 at 6, 10. However, the administrative judge found that, even

accepting the appellant’s explanation of the context as true, his conduct was still

inappropriate, unsuitable, and reflected poor judgment. ID at 6-7. Regarding the

remaining specifications, the appellant summarily reiterates, without citation to

any record evidence, that his actions were proper as part of his job duties and that

his first-level supervisor confirmed that he was following proper procedure. PFR

File, Tab 3 at 6. Considering the record evidence, the administrative judge found

implausible the appellant’s claim that his communications with C.C. were in

keeping with legitimate law enforcement purposes based on the timing of the

communications as well as the commingling of personal and professional

subjects. ID at 9-13. Moreover, contrary to the appellant’s argument, the

administrative judge found that the appellant’s first-level supervisor testified that

agents are expected to interview a complainant within 15 days of receipt of an

allegation of potential misconduct by an agent; yet, the appellant did not do so

here until well beyond the 15-day period. ID at 9-10. Thus, the appellant’s

arguments amount to mere disagreement with the administrative judge’s findings

and do not provide a basis for reversal. See Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 105-06 (1997) (stating that the Board will give due deference to

the credibility findings of the administrative judge and will not grant a petition

for review based on a party’s mere disagreement with those findings);

Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359

(1987) (same).

The administrative judge properly found that the appellant failed to prove that the

agency violated his due process rights.

Regarding the appellant’s contention that the deciding official was biased

and should have recused himself, the administrative judge found that the

appellant failed to present any actual evidence of bias and that the circumstances

were not such that the risk of unfairness was intolerably high. ID at 14-15.

Regarding the appellant’s contention that the deciding official considered

information that he failed to disclose to the appellant, including the appellant’s

history of rudeness and name-calling reflected in his text messages with C.C, the

administrative judge found that the appellant could not reasonably claim that he

was deprived of notice that this information would be considered. ID at 16-17.

In particular, she noted that the notice of proposed removal quoted specific text

messages that contained rude and offensive language, and the appellant requested

via his written response to the proposal that the deciding official consider the full

text message exchanges between the appellant and C.C. to understand the context

of the statements cited in the proposal notice. Id.

On review, the appellant reiterates his same alleged due process violations

but fails to identify any error in the administrative judge’s analysis of such

claims. PFR File, Tab 3 at 10, 12, 14. He further raises a claim that, during the

oral reply, the deciding official inquired about the appellant’s prior relationships

with Federal employees. Id. at 12. This argument does not appear to have been

raised below, and the administrative judge did not address it. In any event, such a

claim would not amount to an ex parte communication because the appellant was

present for the oral reply, provided the information at issue, and was on notice

that the deciding official would consider the information presented during the oral

reply. See Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368,

1376-77 (Fed. Cir. 1999) (discussing when ex parte concerns arise in connection

with an adverse action).

The administrative judge properly found that there was a nexus between the

appellant’s off-duty misconduct and the efficiency of the service.

On review, the appellant disputes that his off-duty conduct has a nexus to

the efficiency of the service. PFR File, Tab 3 at 8-10, 13. The Board generally

recognizes three independent means by which an agency may show a nexus

linking an employee’s off-duty misconduct with the efficiency of the service:

(1) a rebuttable presumption of nexus that may arise in certain egregious

circumstances based on the nature and gravity of the misconduct; (2) a showing

by preponderant evidence that the misconduct affects the employee’s or his

coworkers’ job performance, or management’s trust and confidence in the

employee’s job performance; and (3) a showing by preponderant evidence that the

misconduct interfered with or adversely affected the agency’s mission. 2

On review, the appellant states that, in the absence of a violation of criminal law, the

agency may discipline an employee for off-duty misconduct only if it impacts the

agency’s ability to perform its responsibilities or if the conduct constitutes a violation

of an internal regulation. PFR File, Tab 3 at 13. However, he cites no case law in

Kruger v. Department of Justice, 32 M.S.P.R. 71, 74 (1987). Here, we agree with

the administrative judge that the appellant’s statement that he had thought about

killing C.C. is contrary to the agency’s mission of overseeing and protecting

Internal Revenue Service (IRS) employees from threats. ID at 18. The record

reflects that one of TIGTA’s core missions is the protection of IRS employees,

which includes investigating threats against IRS employees and determining

whether the employee’s safety in their capacity as an IRS employee is implicated.

ID at 18; IAF, Tab 24, Hearing Transcript (HT) at 126-27. Moreover, the Board

has long held that law enforcement agents are held to a higher standard of

conduct than other employees. See, e.g., MacDonald v. Department of the Navy,

4 M.S.P.R. 403, 404 (1980). Accordingly, we agree with the administrative judge

that a nexus exists between the appellant’s off-duty misconduct and the efficiency

of the service. See, e.g., Royster v. Department of Justice, 58 M.S.P.R. 495, 500

(1993) (the appellant’s off-duty misconduct involving threatening and abusive

calls to a woman bore a nexus to his position as correctional officer in a women’s

prison); Barnhill v. Department of Justice, 10 M.S.P.R. 378, 381 (1982) (the

appellant’s off-duty obscene telephone calls and threats of violence to a woman

bore a nexus to the efficiency of the service given his position as a Border Patrol

Agent whose duties entailed the apprehension of female suspects).

The administrative judge properly found that the penalty of removal is

reasonable.

The administrative judge found that the appellant failed to prove his

disparate penalty claim because, although the purported comparators were

charged with conduct unbecoming, the nature of the underlying conduct, such as

misuse of a government vehicle or using profanity toward subordinates, was

materially different than the misconduct engaged in by the appellant.

ID at 21-23. The administrative judge further found that the appellant did not

show that any of the purported comparators were located in the same group or

support of this proposition.

field division, held the same position, or had the same deciding official. ID at 23.

On review, the appellant identifies the same comparators and reiterates his

argument that the deciding official failed to consider the consistency of the

penalty imposed but does not identify any specific error in the administrative

judge’s analysis. PFR File, Tab 3 at 14, 17-20.

After the issuance the initial decision, the Board clarified the proper

standards for assessing a disparate penalty claim in Singh v. U.S. Postal Service,

2022 MSPB 15. In Singh, the Board noted that, under recent case law, the

universe for potential comparators had become worldwide and that broad

similarity in misconduct between the appellant and the comparator had been

found sufficient to shift the burden to the agency to explain the difference in

treatment. Singh, 2022 MSPB 15, ¶ 11. The Board clarified that, although the

universe of potential comparators will vary from case to case, it should be limited

to those employees whose misconduct and/or other circumstances closely

resemble those of the appellant. Id., ¶ 13. The Board noted that, in most cases,

employees from another work unit or supervisory chain will not be proper

comparators. Id. The Board further held that the relevant inquiry is whether the

agency knowingly and unjustifiably treated employees differently. Id., ¶ 14.

Here we find that the administrative judge’s analysis comports with the

standards set forth in Singh. We agree with the administrative judge that the

record reflects that the alleged comparators did not engage in similar misconduct

or that such individuals were in the same work unit or supervisory chain as the

appellant. ID at 21-23; IAF, Tab 15 at 38-60, Tab 16 at 5-48, Tab 22 at 6-9.

Rather, the purported comparators were in different field divisions, and different

proposing and deciding officials were involved in the disciplinary actions. IAF,

Tab 15 at 38-60, Tab 16 at 5-48, Tab 22 at 6-9. Nor does the record contain

anything suggesting that the agency knowingly treated the appellant differently.

Accordingly, we affirm the initial decision, sustaining the appellant’s

removal.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the