Opinion

Danny Smith 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Status: Unpublished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%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANNY SMITH, DOCKET NUMBER

Appellant, DA-0752-23-0127-I-1

DEPARTMENT OF THE TREASURY, DATE: June 14, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brittany Forrester , Esquire, Christopher Snowden , Esquire, and

Alan V. Edmunds , Esquire, Ponte Vedra Beach, Florida, for the

appellant.

Alysa Lease-Williams , Esquire, Samantha Bognar , Esquire,

and Deborah Charette , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

sustained the charge of inappropriate conduct (involving four specifications),

found that the appellant did not prove his affirmative defenses of race

discrimination and harmful procedural error, and upheld the removal for the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

sustained misconduct. 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

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 and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

DISCUSSION OF ARGUMENTS ON REVIEW

In his petition for review, the appellant argues, among other things, that the

administrative judge erred in finding the agency witnesses credible in her

evaluation of the inappropriate conduct specifications, and she erred in her

conclusion that the agency did not commit harmful procedural error. Petition for

Review (PFR) File, Tab 1. He also asserts, for the first time in his reply brief,

that the agency violated his due process rights. PFR File, Tab 4 at 9-11. For the

following reasons, a different outcome is not warranted. 2

The appellant does not explicitly challenge the administrative judge’s analysis of his

race discrimination claim or her finding that the agency proved nexus and that the

removal penalty was reasonable for the sustained misconduct. We affirm the initial

decision in this regard.

We discern no error with the administrative judge’s decision to sustain the four

specifications and the inappropriate conduct charge.

In the administrative judge’s analysis of the four specifications and the

charge, she credited the testimony of the agency witnesses over the appellant.

E.g., Initial Appeal File (IAF), Tab 27, Initial Decision (ID) at 5, 9-10, 12-14.

Some of the administrative judge’s credibility determinations were explicitly

based on witness demeanor. E.g., ID at 13. However, because a hearing was

held, the administrative judge’s credibility determinations are implicitly based on

witness demeanor. Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4

(2009). The Board must give “special deference” to an administrative judge’s

demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly

discussed.” Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373

(Fed. Cir. 2016); see Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.

Cir. 2002) (finding that the Board must give deference to an administrative

judge’s credibility determinations when they are based, explicitly or implicitly,

on the observation of the demeanor of witnesses testifying at a hearing; the Board

may overturn such determinations only when it has “sufficiently sound” reasons

for doing so). Additionally, the Board will not disturb an administrative judge’s

findings when she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions on issues of credibility. Crosby

v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of

Health & Human Services, 33 M.S.P.R. 357, 359 (1987). We have considered the

appellant’s specific arguments on review, but none persuade us that the

administrative judge erred in her credibility determinations or her decision to

sustain the four specifications and the inappropriate conduct charge.

The appellant’s arguments about harmful procedural error do not warrant a

different outcome.

Harmful error under 5 U.S.C. § 7701(c)(2)(A) cannot be presumed; an

agency error is harmful only where the record shows that the procedural error was

likely to have caused the agency to reach a conclusion different from the one it

would have reached in the absence or cure of the error. Stephen v. Department of

the Air Force, 47 M.S.P.R. 672, 681, 685 (1991). The appellant bears the burden

of proving harmful procedural error by preponderant evidence. 5 C.F.R.

§ 1201.56(b)(2)(i)(C).

In the initial decision, the administrative judge found that the appellant did

not prove his claim of harmful procedural error relating to the agency’s failure to

allow him to rescind or modify the April 19, 2022 statement that he provided

during the factfinding. 3 ID at 17-18. The administrative judge also noted that the

appellant suggested during the hearing that his first-line supervisor should have

been the deciding official on the removal action, instead of his fourth-line

supervisor, but she concluded that the appellant failed to show by preponderant

evidence that the appointment was contrary to any applicable procedure or that it

constituted harmful procedural error. ID at 18 n.3. The appellant raises both

claims on review, but we are not persuaded that a different outcome is warranted.

Even if we assume for the purposes of our analysis that the agency

committed an error by not permitting the appellant to edit his statement, the

appellant has not persuaded us that the agency would have reached a different

decision in the absence of the error. Indeed, in his written response to the notice

of proposed removal, the appellant clarified that he “tickl[ed]” an officer’s neck

and “mov[ed] side to side when trying to tickle him while he was sitting down,”

and he admitted tickling a second officer. IAF, Tab 7 at 29. The deciding

official noted in the decision letter the inconsistency between the appellant’s

statements, and he found more credible the appellant’s first statement because it

was closer in time to the actual events and was made under oath. Id. at 24-25.

We discern no error with the administrative judge’s conclusion that the appellant

did not prove his harmful procedural error claim in this regard.

This was the only harmful procedural error claim identified during the prehearing

conference summary, IAF, Tab 17 at 4, and the appellant did not challenge the

administrative judge’s characterization in this regard.

Likewise, we are also not persuaded that the agency erred when it

designated the appellant’s fourth-line supervisor as the deciding official on the

removal action. The provisions cited by the appellant, which are part of the

agency’s anti-harassment policy, only apply to the deciding official on the

harassment allegations, not the deciding official on the removal action. Thus,

there is no support for the appellant’s assertion that the agency committed

harmful procedural error involving the deciding official on the removal action. 4

On petition for review, the appellant also asserts that the agency committed

harmful procedural error when it failed to appoint an impartial factfinder for the

investigative inquiry, when the factfinder questioned witnesses about specific

instances of alleged harassment, and when it delayed issuing corrective action

against him. 5 PFR File, Tab 1 at 11-15. We have considered these arguments,

but we likewise conclude that a different outcome is not warranted. Importantly,

we are not persuaded that the agency committed any error regarding the

appointment of the factfinder or how the factfinder questioned certain witnesses.

Even if we assumed for the purposes of our analysis that the agency made an

error when it delayed issuing corrective action against him, the appellant has not

persuaded us that the agency would have reached a different conclusion in the

absence of the error.

Even if the agency erred by appointing the appellant’s third-level supervisor as the

deciding official on the harassment allegations, the appellant has not explained how the

agency would have reached a different decision in the absence of the error. Indeed,

there is no indication that the appellant’s first-line supervisors, who wrote character

references for him, had any knowledge of the inappropriate conduct allegations made

against him. Therefore, the appellant can only speculate as to what either of his first-

line supervisors would have done based on the factfinder’s report on the harassment

allegations. The appellant’s speculation does not satisfy his burden to prove that any

error was harmful. Defense Intelligence Agency v. Department of Defense ,

122 M.S.P.R. 444, ¶ 15 (2015); Parker v. Defense Logistics Agency, 1 M.S.P.R. 505,

515 (1980).

In his closing argument, he raised arguments about the agency delaying issuing

corrective action against him. IAF, Tab 26-4 (closing argument).

The Board need not consider the appellant’s due process claim, which he raises

for the first time in his reply brief, because it is not based on new and material

evidence.

In his reply brief, the appellant asserts, for the first time, that the agency

violated his due process rights by introducing new evidence against him without

allowing him to respond to such evidence. PFR File, Tab 4 at 9-10. The

appellant asserts that the factfinder on the harassment allegations sent an April

26, 2022 email—2 days before he submitted the factfinding report—containing a

second sworn statement from the appellant as well as his impressions of the

appellant to, among other people, (1) the deciding official on the factfinding, who

later became the proposing official on the removal action, and (2) the individual

who later became the deciding official on the removal action. Id. at 10; IAF,

Tab 13 at 57.

The appellant, who was represented by counsel before the administrative

judge, did not raise a due process claim in his prehearing submission, the

administrative judge did not note it as an issue during the prehearing conference,

and she did not discuss such a claim in the initial decision. IAF, Tabs 13, 17.

The Board generally will not consider an argument raised for the first time in a

petition for review absent a showing that it is based on new and material evidence

not previously available despite the party’s due diligence. Clay v. Department of

the Army, 123 M.S.P.R. 245, ¶ 6 (2016). The factfinder’s April 26, 2022 email

referenced by the appellant to support his claim of an alleged due process

violation is not new evidence. To the contrary, the appellant included this

document in his prehearing submission. IAF, Tab 13 at 57. Accordingly, because

it is not based on new evidence, we need not consider the appellant’s argument on

review.

We have considered the appellant’s remaining arguments, but we are not

persuaded that a different outcome is warranted.

NOTICE OF APPEAL RIGHTS 6

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. 7 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