Opinion

Tracy England v. Department of Defense

Court: Merit Systems Protection Board
Filed: Jul 12, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TRACY DEWAYNE ENGLAND, DOCKET NUMBER

Appellant, DC-0752-18-0464-I-2

DEPARTMENT OF DEFENSE, DATE: July 12, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Dionna Maria Lewis , Esquire, Washington, D.C., for the appellant.

Richard Saviet , Esquire, and Troy Richard Holroyd , Esquire, Fort Belvoir,

Virginia, 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

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

sustained his removal for a positive drug test. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 in paragraph 11 below regarding the appellant’s claim of inadvertent

ingestion and paragraph 13 below regarding the appellant’s claim of retaliation

for equal employment opportunity (EEO) activity, we AFFIRM the initial

decision.

BACKGROUND

¶2 The appellant was a GS-12 Inventory Management Specialist for the

agency. England v. Department of Defense, MSPB Docket No. DC-0752-18-

0464-I-1, Initial Appeal File (IAF), Tab 10 at 21. Inventory Management

Specialist is a “testing designated position,” meaning that incumbents are required

to undergo periodic unannounced urinalysis to screen for illegal drug use. IAF,

Tab 11 at 42.

¶3 In August 2017, the appellant tested positive for marijuana in a random

drug test. Id. at 48. He served a 15-day suspension for that offense in

December 2017 and completed an agency-recommended drug treatment program. 2

Id. at 44-48. The agency notified the appellant that he would be subject to

follow-up drug testing throughout 2018 and that failure to pass any drug test

The appellant appealed that suspension to the Board. The administrative judge issued

an initial decision sustaining the suspension, and the appellant did not petition for

review. England v. Department of Defense, MSPB Docket No. DC-0752-18-0242-I-3.

during that period would result in a proposed removal. Id. at 48. These events

were not long in coming.

¶4 On January 30, 2018, the appellant produced a urine sample that tested

positive for cocaine. IAF, Tab 11 at 49-51, Tab 15 at 5-8. When notified of the

results, the appellant responded that he had not used cocaine. Rather, he

attributed the results to his consumption of Delisse brand cocoa tea, which he

claimed had been given to him by a friend to relieve his cold and flu symptoms.

IAF, Tab 15 at 9-12. Nevertheless, the agency proposed the appellant’s removal

based on a charge of “Illegal Drug Use – Second Offense.” Id. at 17-19. The

appellant responded, again claiming that he tested positive because he had

consumed Delisse tea. Id. at 20-21. The deciding official issued a decision

removing the appellant effective April 20, 2018. IAF, Tab 10 at 21, Tab 18

at 28-31.

¶5 The appellant filed the instant Board appeal, raising affirmative defenses of

race discrimination, sex discrimination, harmful procedural error, retaliation for

EEO activity, and retaliation for filing a prior Board appeal of his suspension.

IAF, Tab 1, Tab 37 at 3-4. After a hearing, the administrative judge issued an

initial decision sustaining the removal. England v. Department of Defense, MSPB

Docket No. DC-0752-18-0464-I-2, Appeal File, Tab 8, Initial Decision (ID). He

found that the charge was essentially undisputed, and he did not credit the

appellant’s testimony that the positive test results were due to the consumption of

Delisse tea. ID at 7-12. The administrative judge further found that the appellant

failed to prove his affirmative defenses. ID at 12-14.

¶6 The appellant has filed a petition for review, disputing the administrative

judge’s findings on the penalty and his affirmative defenses. Petition for Review

(PFR) File, Tab 3. The agency has filed a response. PFR File, Tab 6.

ANALYSIS

¶7 In an appeal of a removal under 5 U.S.C. chapter 75, the agency bears the

burden of proving by preponderant evidence that its action was taken for such

cause as would promote the efficiency of the service. MacDonald v. Department

of the Navy, 4 M.S.P.R. 403, 404 (1980); see 5 U.S.C. § 1201.56(b)(1)(ii). To

meet this burden, the agency must prove its charge, establish a nexus between the

charge and the efficiency of the service, and demonstrate that the penalty imposed

was reasonable. Pope v. U.S. Postal Service, 114 F.3d 1144, 1147 (Fed. Cir.

1997). However, even if the agency carries this burden, the removal may not be

sustained if the appellant shows that it was the product of harmful procedural

error or was based on a prohibited personnel practice described in 5 U.S.C.

§ 2302(b). 5 U.S.C § 7701(c)(2)(A)-(B); 5 C.F.R. § 1201.56(b)(2)(i)(C), (c)

(1)-(2).

¶8 In this case, the administrative judge found that the agency proved its

charge of “Illegal Drug Use – Second Offense.” ID at 7. The appellant does not

challenge this finding on review, and for the reasons explained in the initial

decision, we agree with the administrative judge. Likewise, the appellant does

not challenge the administrative judge’s finding on nexus, and for the reasons

explained in the initial decision, we agree with the administrative judge that the

agency met its burden on that issue as well. ID at 8.

¶9 The appellant does, however, challenge the administrative judge’s finding

on the issue of penalty, particularly with regard to his claim that his consumption

of cocaine was unintentional. PFR File, Tab 3 at 13-14, 16; ID at 8-12. An

appellant who attributes a positive drug test to accidental ingestion bears the

burden of coming forward with sufficient evidence to support his assertion.

Hansen v. Department of Homeland Security, 911 F.3d 1362, 1368 (Fed. Cir.

2018). The administrative judge declined to credit the appellant’s claim for two

reasons. First, he noted that the appellant had also claimed accidental ingestion

in his suspension appeal, and he found it inherently unlikely that the appellant

“would have inadvertently tested positive for illegal drug use, for two different

drugs, on two separate occasions within a 5-month period.” ID at 9-19. Second,

he found that the appellant’s only source of corroboration was the testimony of

his wife and that this testimony varied significantly from the chronology of events

documented elsewhere in the record. ID at 9, 11-12. Specifically, he found that

the appellant’s wife testified that it took him 2 weeks to realize that the Delisse

tea was the source of the positive test results whereas the written record showed

that the appellant proffered this explanation the same day that he received the

results. ID at 11-12.

¶10 On petition for review, the appellant acknowledges that the administrative

judge “expressed concerns regarding the chronology of events” proffered by his

wife, but he argues that the administrative judge failed to consider that his wife

was recovering from major surgery on the day of the hearing. PFR File, Tab 3

at 13-14. To the extent that the appellant is arguing that his wife was having

difficulty recalling events at the hearing, we are unpersuaded. We have reviewed

the testimony at issue and find nothing in it to suggest that the appellant’s wife

was having difficulty recalling details. Hearing Compact Disc at 50:10

(testimony of the appellant’s wife). Rather, the discrepancy is between the

detailed accounting in that testimony and the documentary evidence, as the

administrative judge accurately described. ID at 11-12. The appellant also

argues that administrative judge failed to consider his wife’s medical condition,

the fact that he was her caregiver, and the recent death of his father. To the

extent that the appellant is arguing that these circumstances themselves constitute

mitigating factors for cocaine use, this would seem to be at odds with his claim of

accidental ingestion. Difficult personal circumstances can constitute mitigating

factors, but only if there is a reasoned explanation connecting those circumstances

with the charged misconduct. Wynne v. Department of Veterans Affairs,

75 M.S.P.R. 127, 136 (1997); Barry v. Department of the Treasury, 71 M.S.P.R.

283, 287 (1996). To the extent that the appellant is asserting that these

circumstances put him in the “mindset to live a healthy lifestyle” and consume

various herbal products that resulted in positive drug tests, we find that this

connection is tenuous at best, and we remain unconvinced of the appellant’s

explanation. 3 PFR File, Tab 3 at 14.

¶11 To the extent that the administrative judge found that corroborating

evidence is absolutely required to show accidental ingestion, we modify the initial

decision. ID at 10, 12. The administrative judge observed that the Board has

accepted claims of accidental ingestion when corroborating evidence was present,

Torres v. Department of Justice, 343 F. App’x 610, 613 (Fed. Cir. 2009);

McNeil v. Department of Justice, 117 M.S.P.R. 533, ¶¶ 9-11 (2012); Johnson v.

Department of the Air Force, MSPB Docket No. DE-0752-14-0091-I-2, Final

Order, ¶¶ 5, 8-11 (Apr. 2, 2015), and rejected such claims when corroborating

evidence was absent, Hansen, 911 F.3d at 1367-69; ID at 12. The administrative

judge’s assessment of the existing case law was accurate, but we do not endorse a

generalization of that case law to find that corroboration must be present in every

circumstance. We hold open the possibility that, under the facts of some future

case, an appellant’s credible testimony alone may suffice to support a claim of

accidental ingestion. Nevertheless, even absent a per se corroboration

requirement, “the contradiction of the witness’s version of events by other

evidence or its consistency with other evidence” remains a valid credibility factor

in all cases. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). In

other words, it is appropriate for an administrative judge to consider

corroborating evidence or lack thereof as part of his overall credibility assessment

under a totality of the circumstances approach. In this case, the credibility of the

appellant’s accidental ingestion claim was undercut not merely by his failure to

The appellant states that the agency’s medical review officer confirmed that the results

of the drug test were due to accidental ingestion. PFR File, Tab 3 at 12. This is

inaccurate. The medical review officer’s report recounts the appellant’s explanation for

the positive test result, but it states that the appellant’s explanation does not rule out

cocaine use. IAF, Tab 15 at 8.

present credible corroborating evidence, but also by his attempt to corroborate his

account with evidence that was affirmatively inconsistent with the record.

Coupled with the inherent improbability of the appellant’s version of events and

in light of the deference owed to the credibility determinations made by the

administrative judge after an in-person hearing, see Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002), we find insufficient basis to

disturb the administrative judge’s findings on this issue. We therefore affirm as

modified the administrative judge’s conclusion that the appellant failed to make a

credible showing of accidental ingestion.

¶12 On petition for review, the appellant renews his claims of race and sex

discrimination. PFR File, Tab 3 at 6-8, 16-17. To establish a claim of race or sex

discrimination, an appellant must show that the prohibited consideration was at

least a motivating factor in the personnel action at issue. Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 20-22. In this case, the appellant

argues that, when he, an African American male, applied for a promotion, his

supervisor (the proposing official in his removal) cancelled the vacancy

announcement, waited until a Caucasian female coworker became eligible to

apply, and then selected her instead. PFR File, Tab 3 at 6-8, 16-17. The

appellant also argues that the agency scrutinized him more closely than it did his

female colleagues and that his supervisor improperly denied him training and

education opportunities. Id. At 15-17. However, we agree with the

administrative judge that these matters are unrelated to the removal action, and

we find insufficient basis to draw any discriminatory inference from them. ID

at 14. The appellant has not identified any evidence that would show that the

female employees who were allegedly less scrutinized were similarly situated to

him. See Bruce v. Department of Transportation, 17 M.S.P.R. 153, 155 (1983),

aff’d, 802 F.2d 469 (Fed. Cir. 1986) (Table). Furthermore, even assuming that

the agency improperly denied the appellant training and favored the appellant’s

Caucasian female coworker in its promotion decision, there is no reason to

believe that these actions were motivated by race or sex discrimination. See

Lewin v. Department of Justice, 74 M.S.P.R. 294, 298-99 (1997). Considering the

evidence as a whole, including the undisputed evidence supporting the charge, we

affirm the administrative judge’s finding that the appellant did not prove that

either race discrimination or sex discrimination was a motivating factor in his

removal.

¶13 The appellant also renews his claim of retaliation for prior EEO activity.

PFR File, Tab 3 at 8-10. The administrative judge did not explicitly address this

claim in his initial decision, so we address it here. See Spithaler v. Office of

Personnel Management, 1 M.S.P.R. 587, 589 (1980). A claim of retaliation for

Title VII EEO activity is governed by the same standard as claims of race and sex

discrimination, i.e., the appellant must show that the prohibited consideration was

at least a motivating factor in the personnel action at issue. Pridgen, 2022 MSPB

31, ¶ 30. In determining whether prior EEO activity was a motivating factor in an

adverse action, the Board will consider the evidence as a whole, including

comparator evidence, retaliatory motive, evidence of pretext, comments or

admissions by agency officials, and any other evidence that it finds pertinent. See

Id., ¶ 24. The appellant argues on review that his supervisor knew that he had

engaged in EEO activity with respect to the promotion situation discussed above

and with respect to allegations of a hostile work environment. 4 However, even

taking this assertion as true, the mere fact that the appellant’s supervisor knew

about the appellant’s prior EEO activity is insufficient to show that the removal

was retaliatory, especially considering the strong evidence supporting the

agency’s action. Cf. Brasch v. Department of Transportation, 101 M.S.P.R. 145,

¶ 13 (2006) (finding that the responsible officials’ knowledge of the appellant’s

protected activity was itself insufficient to show that the protected activity was a

motivating factor). The appellant has identified no other evidence in the record

It is not clear whether the same EEO activity encompassed both of these matters.

that might support his claim, and we find that he has not shown that his prior EEO

activity was a motivating factor in his removal.

¶14 Finally, the appellant makes some arguments pertaining to his claim of

harmful procedural error. To demonstrate that an agency committed harmful

procedural error, an appellant must show both that the agency committed

procedural error and that the error was harmful. Parker v. Defense Logistics

Agency, 1 M.S.P.R. 505, 513 (1980). Harmful error 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).

¶15 The appellant argues that he was selected far more often for random drug

testing than mere chance would allow and that the agency was using the program

to harass and target him. PFR File, Tab 3 at 11-12, 16. The appellant has not

identified sufficient evidence to support this argument, and we find that he has

not shown that the agency committed any procedural error in this regard. The

appellant also argues that the administrative judge applied laws that did not

account for various agency rules and the Office of Personnel Management

guidance, but he has not explained specifically how these various provisions

pertain to the removal action at issue or how applying them would result in a

different outcome for this appeal. Id. at 15. Finally, the appellant argues that the

agency’s drug testing policy allows only 2 hours’ advance notice and that the

administrative judge incorrectly found that the agency gave the appellant 1 day’s

notice. Id. at 10-11. To the extent that this argument is related to the appellant’s

affirmative defense of harmful procedural error, we find that the appellant has not

shown that the agency violated any policy or that any such violation may have

affected his substantive rights.

NOTICE OF APPEAL RIGHTS 5

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. 6 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 following