# Brian Mooney v. Social Security Administration

> Merit Systems Protection Board · June 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10417581

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 26, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

BRIAN MOONEY, DOCKET NUMBER
Appellant, SF-0752-19-0189-I-1

v.

SOCIAL SECURITY DATE: June 26, 2024
ADMINISTRATION,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shaun Yancey , Atlanta, Georgia, for the appellant.

Henry Chi and Matthew Miller , Baltimore, Maryland, for the agency.

Esther Kim , San Francisco, California, 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
affirmed the agency’s 30-day suspension action. Generally, we grant petitions
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2

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. Except as expressly
MODIFIED to supplement the administrative judge’s analysis of the second
factor in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir.
1999), we AFFIRM the initial decision.

BACKGROUND
The agency employs the appellant as a GS-14 District Manager for the
District Office in Lancaster, California. Initial Appeal File (IAF), Tab 5 at 39,
Tab 38 at 5. His position is the most senior of the management officials in the
Lancaster District Office (LDO). IAF, Tab 54 at 64. Effective January 28, 2019,
the agency suspended the appellant for 30 days based on charges of conduct
unbecoming a Federal employee (four specifications) and failure to follow
instructions (five specifications). IAF, Tab 5 at 39-45.
The appellant appealed his suspension to the Board and he raised a claim of
whistleblower reprisal. IAF, Tab 1. After the appellant withdrew his request for
a hearing, the administrative judge issued an initial decision based on the written
record that affirmed the agency’s action. IAF, Tab 49, Tab 62, Initial Decision
(ID) at 1. The administrative judge sustained all four specifications of the charge
3

of conduct unbecoming a Federal employee and specifications 2-5 of the charge
of failure to follow instructions. ID at 4-25. Regarding the appellant’s
affirmative defense of whistleblower reprisal, the administrative judge found that
the appellant did not prove his claim. ID at 26-31. The administrative judge also
found that the agency proved nexus and the reasonableness of the penalty. 2
ID at 31-34.
The appellant has filed a petition for review and a supplement. 3 Petition
for Review (PFR) File, Tabs 1-2. The agency has responded in opposition to the
petition for review, to which the appellant has replied. PFR File, Tabs 4-5.

DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charge of conduct unbecoming a Federal employee by
preponderant evidence.
A charge of conduct unbecoming has no specific elements of proof; the
agency establishes the charge by proving the appellant committed the acts alleged
under this broad label. Canada v. Department of Homeland Security,
113 M.S.P.R. 509, ¶ 9 (2010). Moreover, such a charge typically involves

2
The appellant does not challenge the administrative judge’s finding that the agency
established a nexus between the charged misconduct and the efficiency of the service,
and we discern no basis for disturbing this finding on review. ID at 31.
3
Along with his petition for review, the appellant submits numerous exhibits. Petition
for Review (PFR) File, Tab 1 at 32-70, Tab 2 at 4-48. The Board may grant a petition
for review based on new and material evidence that, despite the appellant’s due
diligence, was not available when the record closed. 5 C.F.R. § 1201.115(d). Here, the
appellant has not shown that the information contained in the majority of these exhibits
was unavailable before the record closed despite his due diligence. See Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (stating that the Board generally will
not consider evidence submitted for the first time with a petition for review absent a
showing that it was unavailable before the record was closed despite the party’s due
diligence). Moreover, the appellant has failed to show that any of the evidence he
submits on review is of sufficient weight to warrant an outcome different from that of
the initial decision. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)
(explaining that the Board will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different from
that of the initial decision). Thus, the evidence the appellant submits on review does
not provide a basis for granting review.
4

conduct that is improper, unsuitable, or otherwise detracts from one’s character or
reputation. See Social Security Administration v. Long , 113 M.S.P.R. 190, ¶ 42
(2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011), and overruled on other grounds by
Department of Health and Human Services v. Jarboe , 2023 MSPB 22. For the
reasons stated below, we agree with the administrative judge that the agency
proved by preponderant evidence its charge of conduct unbecoming a Federal
employee. ID at 4-16.
On review, the appellant challenges the administrative judge’s findings
regarding all four specifications of the charge. PFR File, Tab 1 at 18-22. He
argues that the administrative judge incorrectly sustained these specifications
because the administrative judge failed to resolve credibility issues and provide
adequate support for his credibility findings in the initial decision. Id. at 16, 18.
As previously noted, the appellant withdrew his hearing request; thus, the
administrative judge made non-demeanor-based credibility determinations.
In reaching these determinations, the administrative judge assessed the relevant
hearsay evidence under the factors set forth in Borninkhof v. Department of
Justice, 5 M.S.P.R. 77, 83-87 (1981). ID at 6-7. The Board evaluates the
probative value of hearsay evidence under the following factors, among others:
the availability of persons with firsthand knowledge to testify at the
hearing; whether the out-of-court statements were sworn; the consistency of the
out-of-court statements with other statements and evidence; the consistency of
declarants’ accounts with other information in the case, internal consistency, and
their consistency with each other; and whether corroboration for the statements
can otherwise be found in the agency record. 4 Borninkhof, 5 M.S.P.R. at 87.
4
The appellant asserts that the administrative judge should have applied the factors set
forth in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). PFR File,
Tab 1 at 16. These factors include (1) the witness’s opportunity and capacity to observe
the event or act in question, (2) the witness’s character, (3) any prior inconsistent
statement by the witness, (4) a witness’s bias, or lack of bias, (5) the contradiction of
the witness’s version of events by other evidence or its consistency with other evidence,
(6) the inherent improbability of the witness’s version of events, and (7) the witness’s
demeanor. Hillen, 35 M.S.P.R. at 458. Even if the Board were to assess the credibility
5

Under specification 1, the agency stated that the appellant permitted
Operations Supervisor E.G. to exercise supervisory functions related to the work
of his spouse, violating an agency policy and a recusal agreement. IAF, Tab 5
at 103. The appellant argues that the administrative judge erred in discrediting
his allegation that he never knowingly engaged in such conduct and in relying on
a statement from Operations Supervisor A.G. 5 that he was the supervisor of
E.G.’s spouse in name only and that the appellant provided direction to A.G. to
have E.G. actively supervise his spouse. PFR File, Tab 1 at 17-18.
Significantly, the administrative judge noted that, in a February 22, 2016 email,
the appellant asked E.G. to assist him in editing a write-up for E.G.’s wife as part
of her nomination for an award, that E.G. responded that the appellant
should “let [A.G.] know” in case it “comes back that [A.G.] wrote [the attached
write-up] for her,” and that the appellant did not show that he was troubled by the
attempt to cover up the appearance of nepotism. ID at 8; IAF, Tab 36 at 15.
The appellant does not dispute that he asked E.G. to assist him in editing a
write-up for his spouse; rather, he stresses that he had no part in getting E.G.’s
spouse the award, it was not a performance-based award, and E.G.’s spouse was
not selected even after being nominated. PFR File, Tab 1 at 17, 19-20.
The appellant’s allegation provides no basis to disturb the administrative judge’s
determination that the record evidence supports specification 1 and that A.G. was
more credible than the appellant in this regard. See Borninkhof, 5 M.S.P.R. at 87.
We find that the administrative judge properly sustained specification 1. ID at 9.
Under the second specification, the agency stated that the appellant
permitted E.G. to prepare the Fiscal Year (FY) 2016 Final Performance
Assessment Communications System (PACS) appraisal for his spouse.

of the appellant and relevant agency witnesses under Hillen, it would reach the same
conclusions for reasons similar to those that diminish the value of the hearsay evidence
under Borninkhof.
5
As the administrative judge noted, A.G. was tasked with acting for E.G. whenever
E.G. had to recuse himself. ID at 6; IAF, Tab 38 at 41.
6

IAF, Tab 5 at 103. The appellant asserts that the administrative judge’s finding
that he engaged in such misconduct is not supported by the record evidence. 6
PFR File, Tab 1 at 20. However, as the administrative judge noted, in an
October 31, 2016 email, A.G. informed the appellant that E.G.’s spouse’s
appraisal was in PACS for his review and that he used information that he
received from E.G. to write it. ID at 10; IAF, Tab 11 at 95. The appellant
responded that he would “review [it].” ID at 10; IAF, Tab 11 at 95.
The administrative judge properly concluded that the appellant was aware of
E.G.’s role in drafting his spouse’s appraisal and permitted it. ID at 10. Because
the record evidence supports specification 2, we find that the administrative judge
properly sustained it. ID at 11.
Under specification 3, the agency stated that, when the LA Metro Area
Director’s Office (ADO) staff had a meeting with the LDO management team on
March 7, 2018, the appellant “sat away from the group, with [his] arms crossed,
and . . . rolled [his] eyes and sighed out loud.” IAF, Tab 5 at 104. The agency
specified that the appellant also made the following comments: “[s]o you want us
to send you an email every month?”; “[o]h come on”; and “[g]ot it, conversation
over.” Id. The appellant asserts that the third specification was erroneously
sustained and exaggerated by the agency. PFR File, Tab 1 at 21. He maintains
that he asked relevant and appropriate questions and that his tone was
mischaracterized as excessively rude or inappropriate. Id. at 22. However, the
appellant admitted to making the aforementioned comments to senior-level

6
Among other things, the appellant asserted that he notified the LA Metro Area
Director’s Office (ADO) when he became aware that A.G. relied on E.G.’s input to
draft an appraisal for E.G.’s spouse. PFR File, Tab 1 at 20. The administrative judge
considered this assertion and found that the record evidence nonetheless established that
the appellant had a working relationship with both E.G. and A.G. that led E.G. to
provide input on his wife’s appraisal, and that the appellant put both E.G. and A.G. in a
position of violating agency policy. ID at 10. Moreover, the record reflects that the
appellant’s argument that he notified the ADO of E.G.’s involvement in his spouse’s
appraisal was considered by the proposing and deciding officials as a factor in
mitigating the penalty. IAF, Tab 5 at 42, 109.
7

agency managers. ID at 11-12; IAF, Tab 47 at 6, Tab 53 at 56-57. Moreover, the
administrative judge credited the declarations under penalty of perjury of LDO
Operations Supervisor R.H. and ADO Operations Supervisor S.S., both of whom
attended the March 7, 2018 meeting, in which they stated that they perceived the
appellant’s behavior during the meeting to be impolite and unprofessional.
ID at 12-13. The administrative judge observed that their declarations were
consistent each other, that S.S.’s statements mirrored his contemporaneous notes,
and that it was potentially contrary to R.H.’s self-interest to provide information
that may reflect negatively on the appellant, his second -line supervisor.
ID at 12-13; IAF, Tab 54 at 57-58, 69-70; see Borninkhof, 5 M.S.P.R. at 87.
Based on the foregoing, we find that the administrative judge properly sustained
specification 3. ID at 13.
Under specification 4, the agency stated that, on September 11, 2018, the
appellant raised his left hand and continued walking when Area Director J.L.
attempted to ask him to meet in his office to talk. IAF, Tab 5 at 104.
The appellant asserts that the fourth specification was erroneously sustained and
exaggerated by the agency. PFR File, Tab 1 at 22. The administrative judge
credited J.L.’s description of the September 11, 2018 encounter (as set forth in
specification 4) because J.L. provided a declaration under penalty of perjury and
contemporaneous notes that were consistent with those of Assistant District
Manager G.F., who witnessed the incident. ID at 13-15;
see Borninkhof, 5 M.S.P.R. at 87. The administrative judge also noted that it was
potentially contrary to G.F.’s self-interest to corroborate J.L.’s version of events
because the appellant was her first-line supervisor. ID at 15. We agree with the
administrative judge’s assessment of the Borninkhof factors and we find that the
administrative judge properly sustained specification 4.
Based on our review of the record, we agree with the administrative judge
that the agency proved by preponderant evidence the charge of conduct
unbecoming a Federal employee.
8

The agency proved its charge of failure to follow instructions by
preponderant evidence.
To prove a charge of failure to follow instructions, an agency must
establish that the employee: (1) was given proper instructions; and (2) failed to
follow the instructions, regardless of the employee’s intent. Powell v. U.S. Postal
Service, 122 M.S.P.R. 60, ¶ 5 (2014). For the reasons stated below, we agree
with the administrative judge that the agency proved by preponderant evidence
the charge of failure to follow instructions. ID at 16-25.
On review, the appellant asserts that the administrative judge incorrectly
sustained specifications 2-5. 7 PFR File, Tab 1 at 22. Under specifications 2
and 3, the agency stated that the appellant was instructed to send a designated
number of Continuing Disability Reviews (CDRs) to the ADO in October 2017
and February 2018, or otherwise notify the ADO that he anticipated that the LDO
could not meet that goal, and that the appellant failed to follow those instructions.
IAF, Tab 5 at 104. The administrative judge noted that the parties stipulated to
the facts underlying specifications 2 and 3, and he found the parties’ factual
stipulations sufficient to prove that the appellant failed to follow instructions as
set forth in these specifications. ID at 20-23; IAF, Tab 47 at 6.
The appellant reiterates on review that he informed the ADO by the
designated deadline that challenges with mail delivery as a result of office
relocation adversely impacted the ability of the LDO to gauge the number of
CDRs that would be completed in a given month. PFR File, Tab 1 at 22-24.
In analyzing specification 3, the administrative judge considered this explanation
but found it was unpersuasive because it was vague and uncorroborated. ID at
22. The administrative judge instead credited the declarations under penalty of
perjury of two ADO employees, both of whom denied that the LDO management
team contacted them to notify them by the designated deadline that the LDO
could not meet its CDR goal. ID at 21-23; see Borninkhof, 5 M.S.P.R. at 87.
7
As previously noted, the administrative judge only sustained specifications 2-5 under
this charge.
9

We discern no basis for disturbing the administrative judge’s credibility
determination and find that the administrative judge properly sustained
specifications 2 and 3. ID at 20-23.
Under specifications 4 and 5, the agency stated that, in March 2018, J.L.
suspended telework for the LDO management team and instructed the appellant to
stop assigning clerical and front-end reception duties to a Staff Assistant due to
insufficient management resources, and that the appellant failed to follow those
instructions. IAF, Tab 5 at 104. The administrative judge noted that the parties
stipulated to the fact that J.L. suspended telework for the LDO management team
in March 2018. ID at 23-25; IAF, Tab 47 at 7. The appellant reiterates on review
that, in a June 2018 conversation, J.L. provided him with unclear instructions as
to the suspension of management telework. PFR File, Tab 1 at 24-25.
The administrative judge considered this explanation below but found it was not
persuasive because the appellant’s description of his June 2018 conversation with
J.L. was internally inconsistent and unsupported by corroborating evidence.
ID at 24. The administrative judge noted, among other things, that an
October 25, 2018 email authored by J.L. evidenced that the appellant resumed
telework “without [J.L.’s] concurrence.” ID at 24-25. We discern no reason to
disturb the administrative judge’s credibility determinations regarding this
specification and his conclusion that the agency proved specification 4. ID at 25.
Concerning specification 5, the administrative judge noted that the parties
stipulated to the facts as set forth in the specification, and he found the parties’
stipulations sufficient to prove that the appellant failed to follow instructions as
set forth under this specification. ID at 25. The appellant alleges on review that
the LDO had no choice but to assign the Staff Assistant clerical and front-end
reception duties due to temporary staffing vacancies and an initiative to improve
wait-time goals. PFR File, Tab 1 at 25-26. The administrative judge considered
this explanation below but noted that the appellant did not allege, nor does the
record show, that J.L. had rescinded his March 2018 instruction at the time the
10

appellant assigned the Staff Assistant such duties. ID at 25. We discern no
reason to disturb the administrative judge’s finding that the agency proved
specification 5. ID at 25.
Based on our review of the record, we agree with the administrative judge’s
finding that the agency proved by preponderant evidence the charge of failure to
follow instructions. See Hicks v. Department of the Treasury, 62 M.S.P.R. 71,
74 (1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995) (Table) (stating that an agency is
required to prove only the essence of its charge, and that it need not prove each
factual specification supporting the charge).

We modify the initial decision to supplement the administrative judge’s analysis
of the second Carr factor, still finding that the appellant failed to prove his
affirmative defense of whistleblower reprisal.
On review, the appellant disagrees with the administrative judge’s
assessment of his affirmative defense of whistleblower reprisal. PFR File, Tab 5
at 8-10. In particular, he asserts that the facts of this case are similar to
Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), in that he had
been a “stellar employee” for 15 years until he made the disclosure and then he
had increasingly poor performance. Id. at 10. As discussed below, the appellant
has not articulated a basis to disturb the administrative judge’s findings regarding
his whistleblower reprisal claim.
In an adverse action appeal, an appellant’s claim of whistleblower reprisal
is treated as an affirmative defense. Campbell v. Department of the Army,
123 M.S.P.R. 674, ¶ 11 (2016). In such appeals, once the agency proves its
adverse action case by preponderant evidence, 8 the appellant must show by
preponderant evidence that he engaged in whistleblowing activity by making a
protected disclosure under 5 U.S.C. § 2302(b)(8) and that the disclosure was a

8
Preponderance of the evidence is defined by regulation as that degree of relevant
evidence which a reasonable person, considering the record as a whole, would accept as
sufficient to find that a contested fact is more likely to be true than untrue.
5 C.F.R. § 1201.4(q).
11

contributing factor in the agency’s personnel action. Id.; 5 C.F.R. § 1201.56(b)
(2)(i)(C). When, as here, the appellant makes such a showing, the Board will
order corrective action unless the agency shows by clear and convincing
evidence 9 that it would have taken the personnel action in the absence of the
protected disclosure. Campbell, 123 M.S.P.R. 674, ¶ 12.
In determining whether an agency has shown by clear and convincing
evidence that it would have taken the personnel action in the absence of the
whistleblowing, the Board will consider the following factors: (1) the strength of
the agency’s evidence in support of its action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr, 185 F.3d at 1323. The Board does not view these factors as discrete
elements, each of which the agency must prove by clear and convincing evidence,
but rather weighs these factors together to determine whether the evidence is
clear and convincing as a whole. Campbell, 123 M.S.P.R. 674, ¶ 12. The Board
must consider all of the evidence, including evidence that detracts from the
conclusion that the agency met its burden. Whitmore, 680 F.3d at 1368.
Here, the administrative judge correctly determined that the appellant
established that he made a whistleblowing disclosure on or about October 2016
when he reported a potential anti-nepotism violation to the ADO, and that, based
on the knowledge-timing test, the appellant proved that his disclosure was a
contributing factor in the agency’s decision to suspend him for 30 days.
ID at 27-29. The parties do not dispute the administrative judge’s findings in this
regard. The only issue before us is whether the agency has shown by clear and
convincing evidence that it would have suspended the appellant for 30 days in the
absence of his whistleblowing disclosure.
9
Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established.
5 C.F.R. § 1209.4(e).
12

Regarding the first Carr factor, the administrative judge found that the
agency’s evidence in support of its action was quite strong because the appellant
engaged in multiple incidents of misconduct, and because the misconduct was
especially serious given the appellant’s position as a high-level manager.
ID at 29. The administrative judge stated that the agency established by
preponderant evidence that the appellant played a direct role in allowing his own
subordinates to engage in the nepotism that he subsequently reported to the
agency. ID at 29. The appellant does not challenge this finding on review, and
we discern no basis to disturb it. See Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 105-06 (1997) (finding no reason to disturb the administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
inferences and reached well-reasoned conclusions).
Regarding the second Carr factor, the administrative judge found that,
based on the record evidence, the agency had little motivation to retaliate against
the appellant. ID at 29-30. In reaching this finding, the administrative judge
observed that the proposing official considered the appellant’s disclosure to the
ADO as a mitigating factor in his penalty analysis and stated that, but for this
disclosure, he would have proposed the appellant’s removal for the misconduct at
issue. ID at 30. The administrative judge also observed that there is no
indication in the record that the proposing official had any role in enabling the
nepotism to occur, or that the appellant’s disclosure otherwise implicated him.
ID at 30. In addition, the administrative judge noted that the deciding official
was not even in the appellant’s chain of command, which meant that he would not
have been subject to any adverse consequences. ID at 30.
In Whitmore, 680 F.3d at 1370, the U.S. Court of Appeals for the Federal
Circuit cautioned the Board against taking an unduly and restrictive view of
retaliatory motive, stating that, “[t]hose responsible for the agency’s performance
overall may well be motivated to retaliate even if they are not directly implicated
by the disclosures, and even if they do not know the whistleblower personally, as
13

the criticism reflects on them in their capacities as managers and employees.”
Here, the appellant’s disclosure reflected poorly on the agency and thus, by
implication, on the proposing and deciding official as well. We therefore find
that the proposing and deciding officials could have had some motive to retaliate
against the appellant and we modify the initial decision accordingly.
The administrative judge considered the appellant’s allegation that his
relatively poor FY 2018 PACS performance appraisal reflected that the proposing
official had a motivation to retaliate against him. The administrative judge
found, however, that the trend of the appellant’s performance ratings supported
the agency’s position rather than undermined it because his ratings for FY 2017
were higher than his ratings for FY 2016. 10 ID at 30. We discern no basis for
disturbing this finding. In light of the agency’s consideration of the appellant’s
disclosure as a mitigating factor in the decision to suspend him, and the trend of
the appellant’s performance ratings, we find that, even if the appellant’s
disclosure evidenced a retaliatory motive on the part of the proposing and
deciding officials, any such motive was not strong.
Regarding the third Carr factor, the administrative judge found that it
weighed in favor of the agency because the agency provided evidence that it took
similar actions against similarly situated nonwhistleblowers, i.e., it proposed a
7-day suspension for A.G. 11 based on charges of conduct unbecoming and lack of
candor. ID at 30-31. The administrative judge recognized that A.G. received
lesser discipline than the appellant but noted that A.G. was a lower-level manager
and that the appellant was also charged with numerous other incidents of
misconduct, including repeated failures to follow the instructions of his
supervisor. ID at 30. The appellant does not challenge this finding on review,
and we discern no basis to disturb it.

10
While the appellant received a lower performance rating in FY 2018, his FY 2018
PACS performance appraisal was nonetheless successful. IAF, Tab 40 at 10-17.
11
There is no indication in the record that A.G. was a whistleblower.
14

After carefully balancing the Carr factors, we find that the agency has
shown by clear and convincing evidence that it would have suspended the
appellant in the absence of his whistleblowing disclosure. We therefore agree
with the administrative judge that the appellant failed to prove his affirmative
defense of whistleblower reprisal.

The agency proved the penalty was reasonable.
When all of the agency’s charges are sustained, but not all of the
underlying specifications are sustained, the agency’s penalty determination is
entitled to deference and should be reviewed only to determine whether it is
within the parameters of reasonableness. Parker v. U.S. Postal Service,
111 M.S.P.R. 510, ¶ 8 (2009), aff’d, 355 F. App’x. 410 (Fed. Cir. 2009). In
applying this standard, the Board must take into consideration the failure of the
agency to sustain all of its supporting specifications. Id. An agency’s failure to
sustain all of its supporting specifications, however, may contribute to a finding
that the agency’s penalty is not reasonable. Id. In such a case, the Board will
look for evidence showing that the agency would have imposed the same penalty
for the sustained specification. Id.
Nevertheless, the Board’s function is not to displace management’s
responsibility or to decide what penalty it would impose, but to assure that
management’s judgment has been properly exercised and that the penalty selected
by the agency does not exceed the maximum limits of reasonableness. Id., ¶ 9.
Thus, the Board will modify a penalty only when it finds that the agency failed to
weigh the relevant factors or that the penalty the agency imposed clearly
exceeded the bounds of reasonableness. Id.
The appellant argues that the administrative judge erroneously applied the
Douglas factors. PFR File, Tab 1 at 26. He asserts that he should have received
a lesser penalty due to the mitigating factors in his case. Id. We agree with the
administrative judge that the deciding official properly weighed the Douglas
factors in making her penalty determination. ID at 33-34. The deciding official
15

recognized the numerous strong mitigating factors, including the appellant’s lack
of prior discipline during his 15 years of Federal service and his successful
performance appraisals, but she concluded that these factors were insufficient to
outweigh the seriousness of the appellant’s misconduct. IAF, Tab 5 at 106.
We agree with the administrative judge that a 30-day suspension is a
reasonable penalty for the sustained misconduct. ID at 34; see Guzman-Muelling
v. Social Security Administration, 91 M.S.P.R. 601, ¶¶ 2, 16-17 (2002)
(finding that a suspension of 30 days was within the parameters of reasonableness
for, among other things, discourteous and disruptive conduct). This is especially
so considering that the appellant holds a supervisory position and is held to a
higher standard of conduct. See Gebhardt v. Department of the Air Force,
99 M.S.P.R. 49, ¶ 21 (2005), aff’d, 180 F. App’x 951 (Fed. Cir. 2006).
Accordingly, we affirm the agency’s suspension action.

NOTICE OF APPEAL RIGHTS 12
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

12
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.
16

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:
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.
17

(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:
18

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. 13 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).

13
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
19

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
following address:
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10417581. Public record. Not legal advice.