Opinion

Paula Kohlhapp v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Oct 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.8%

finding that the Board 8 must give deference to an administrative judge’s demeanor-based credibility determinations

How later courts described this case

finding that the Board 8 must give deference to an administrative judge’s demeanor-based credibility determinations
recognizing that individuals responsible for the agency’s performance overall may have a motive to retaliate as whistleblowing criticism reflects on them in their capacities as managers and employees
noting that, for other employees to be deemed similarly situated, all relevant aspects of the appellant’s employment situation must be nearly identical to those of the comparative employees
finding an agency’s failure to produce comparator evidence may be at the agency’s peril

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PAULA KOHLHAPP, DOCKET NUMBER

Appellant, DE-0752-20-0252-I-1

DEPARTMENT OF HOMELAND DATE: October 11, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Georgia A. Lawrence , Esquire, and Shaun C. Southworth , Esquire,

Atlanta, Georgia, for the appellant.

Michael L. Gurnee , Esquire, Centennial, Colorado, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and 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 removal action. Generally, we grant petitions such as this

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 analysis of the appellant’s claim of whistleblower

retaliation and apply the proper standard to her equal employment opportunity

(EEO) reprisal claim, we AFFIRM the initial decision.

BACKGROUND

The appellant was a Supervisory Immigration Services Officer with the

agency’s U.S. Citizenship and Immigration Services department at its Nebraska

Service Center. Initial Appeal File (IAF), Tab 5 at 13, 45. On February 14,

2020, the agency proposed to remove the appellant based on one charge of failure

to follow instructions, with two specifications, and one charge of lack of candor,

with one underlying specification. Id. at 45-47. Specifically, the agency asserted

that the appellant failed to follow instructions when, on two separate occasions,

she forwarded emails marked for management only to non-management

employees. Id. at 45-46. Moreover, the agency asserted that the appellant lacked

candor when, during an investigation by the agency’s Office of Security and

Integrity (OSI) into the forwarding of management-only emails, the appellant

denied the misconduct despite having forwarded the email in question. Id.

at 46-47. After the appellant submitted a written reply, the deciding official

sustained the second specification underlying Charge 1 but not the first

specification. 2 Id. at 14-18, 27-40. The deciding official also sustained Charge 2

and found that the penalty of removal was warranted. Id. at 14. The appellant

filed a Board appeal arguing that the agency failed to prove the charges, asserting

whistleblower retaliation and reprisal for prior EEO activity, and contending that

the penalty of removal was too severe. IAF, Tab 1 at 16-29.

Following a hearing, the administrative judge affirmed the agency’s

removal action. IAF, Tab 20, Tab 22, Tab 27, Tab 29, Initial Decision (ID) at 1.

The administrative judge sustained both charges and found that the appellant

failed to establish her affirmative defenses of whistleblower retaliation and

reprisal for prior EEO activity. ID at 6-27. Finally, the administrative judge

found that the agency established the requisite nexus between the sustained

charges and the efficiency of the service and that the penalty of removal was

within the tolerable bounds of reasonableness. ID at 27-31.

The appellant has filed a petition for review, arguing that the administrative

judge erred in sustaining the charges, challenging the administrative judge’s

analysis regarding her affirmative defenses, and asserting that the penalty of

removal is unreasonable. 3 Petition for Review (PFR) File, Tab 1 at 5-14. The

agency has responded to the petition for review. PFR File, Tab 3.

Prior to the instant removal, the agency proposed and effected the appellant’s removal

based on similar charges, which she appealed to the Board. Kohlhapp v. Department of

Homeland Security, MSPB Docket No. DE-0752-19-0202-I-2 (0202 AF). Following the

agency’s rescission of the original removal action therein, the administrative judge

dismissed the appeal as moot. 0202 AF, Tab 9 at 1. The Board has issued a separate

decision vacating the initial decision and remanding that matter to the Board’s field

office for further adjudication, and its outcome has no effect on the instant appeal.

Kohlhapp v. Department of Homeland Security , MSPB Docket No. DE-0752-19-0202-I-

2, Final Order (Oct. 11, 2024).

The appellant’s petition for review challenges both the instant removal appeal as well

as her mootness appeal. PFR File, Tab 1 at 5, 15. As the mootness appeal is being

addressed separately, we only address here the arguments concerning her removal

appeal.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly sustained the charges.

The administrative judge correctly sustained the charge of failure to follow

instructions.

The agency’s second specification underlying Charge 1 charged the

appellant with forwarding an email regarding overtime eligibility that was labeled

“for the management team only” to a non-management employee. IAF, Tab 5

at 46. The administrative judge found that the appellant failed to follow

instructions when she received a clear instruction not to forward the email in

question to non-management individuals but did so anyway. ID at 6-11. The

appellant argues that the agency did not provide proper instructions and that her

forwarding of the email was unintentional. PFR File, Tab 1 at 7. We agree with

the administrative judge. To prove a charge of failure to follow instructions, an

agency must establish that the following elements: (1) the employee was given a

proper instruction; and (2) she failed to follow the instruction, without regard to

whether the failure was intentional or unintentional. Powell v. U.S. Postal

Service, 122 M.S.P.R. 60, ¶ 5 (2014).

As for the first element, the administrative judge found that the language in

the email noting that it was “intended for the management team only” was a clear

instruction not to forward the email to non-management and was a proper

exercise of managerial authority. ID at 8. The appellant merely disagrees with

this finding, asserting that she was not given proper instructions or a policy. PFR

File, Tab 1 at 7. However, she fails to explain how the instruction at issue was

improper or unclear. The Board will not disturb an administrative judge’s

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

inferences, and made reasoned conclusions. Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health and Human

Services, 33 M.S.P.R. 357, 359 (1987). The email in question includes clear

language instructing the recipients that it is for management only and further

directs the recipients on how to handle union questions about the information

contained therein. IAF, Tab 5 at 81-82. We find nothing improper about

management sending an email for the management team only. Accordingly, we

agree with the administrative judge, and the appellant’s arguments to the contrary

are unpersuasive.

As to the second element, the record contains an email sent from the

appellant’s work email address to her personal email address forwarding the

management email in question. IAF, Tab 10 at 6-7. The record further includes

an email from the appellant’s personal email address to a non-management

individual working with the agency’s union. Id. The appellant does not deny

forwarding the email to a non-management individual but, rather, argued that it

was done inadvertently and not intentionally. IAF, Tab 13 at 4, 21. However,

intent is not an element of a charge of failure to follow instructions, and an

agency may establish the charge without proving intent to willfully disobey the

instructions. Powell, 122 M.S.P.R. 60, ¶ 5; Hamilton v. U.S. Postal Service,

71 M.S.P.R. 547, 555-57 (1996). Accordingly, we agree with the administrative

judge that the agency proved the second element and, thus, that it proved the

charge of failure to follow instructions. 4 ID at 11.

The administrative judge correctly sustained the lack of candor charge.

The administrative judge found that the agency sufficiently proved that the

appellant lacked candor when she denied forwarding the management-only email

during the OSI investigation. ID at 11-15. The appellant challenges this finding,

arguing that because she was not aware that she forwarded the email to the

non-management individual, she did not knowingly provide inaccurate or

incomplete information. PFR File, Tab 1 at 8-11. We are unpersuaded.

As the administrative judge noted, the agency only sustained specification two of the

charge of failure to follow instructions. IAF, Tab 5 at 14. Nonetheless, when more

than one specification supports a single charge, proof of one or more, but not all, of the

supporting specifications is sufficient to sustain the charge. Burroughs v. Department

of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990).

Lack of candor “is a broader and more flexible concept” than falsification.

Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 23 (2016) (citing

Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002)), clarified

by Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-24.

However, although lack of candor does not require an “affirmative

misrepresentation,” it “necessarily involves an element of deception.” Id. (citing

Ludlum, 278 F.3d at 1284-85). A lack of candor charge requires proof of the

following elements: (1) the employee gave incorrect or incomplete information;

and (2) she did so knowingly. Id.

As to the first element, we agree with the administrative judge that the

appellant provided incorrect information when questioned about whether she had

forwarded an email to a non-management individual. ID at 14. The record

reflects that, when asked by the OSI investigators whether she had forwarded the

email to a non-management individual, she responded “[t]o the best of my

recollection . . . I did not . . . . I sent it to my home [email address] and I don’t

recall forwarding it to anybody else.” IAF, Tab 5 at 145. She further stated, “I

don’t recall doing it and I don’t believe I ever would.” Id. at 146. In a

subsequent portion of the interview, the appellant again denied knowledge of

forwarding the email, stating “[n]ot from me, I don’t believe so, not that I’m

aware of.” Id. at 165. The record reflects that the appellant did in fact forward

the email to a non-management individual. IAF, Tab 10 at 6-7. Accordingly, we

agree with the administrative judge that her statement denying such conduct was

incorrect.

Regarding the second element, the crux of the appellant’s argument on

review is that because she did not intend to forward the email, and was unaware

that she had done so, she did not knowingly provide incorrect or incomplete

information to the OSI investigators. PFR File, Tab 1 at 8-11. The

administrative judge found that the appellant’s statements to the OSI investigators

were not merely incorrect but also involved an element of deception in that when

she responded, the appellant knew that she had forwarded an email to a

non-management individual. ID at 14. In reaching this finding, the

administrative judge made comprehensive credibility findings and specifically did

not credit the appellant’s version of the events. ID at 9-11, 13. The Board must

defer to an administrative judge’s credibility determinations when they are based,

explicitly or implicitly, on observing the demeanor of witnesses testifying at a

hearing; the Board may overturn such determinations only when it has

“sufficiently sound” reasons for doing so. Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002). The Board may overturn an administrative

judge’s demeanor-based credibility determinations only when they are

incomplete, inconsistent with the weight of the evidence, and do not reflect the

record as a whole. Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8

(2004).

Specifically, the administrative judge considered, but did not credit, the

appellant’s testimony that she was very distracted due to an ongoing divorce and

problems with her daughter and that she must have accidentally forwarded the

email instead of putting it in a folder as intended. ID at 9-11. The administrative

judge found it inherently improbable that the appellant, while attempting to put

the email in a folder, would instead click forward, type something on the

keyboard to populate the non-management individual’s email, and click send, all

without noticing. ID at 10-11. Moreover, the administrative judge acknowledged

the lack of apparent motive but found it immaterial to the issue of whether the

appellant’s explanations were credible. ID at 11. We find that the administrative

judge properly considered the record as a whole and made reasoned conclusions,

and the appellant has not identified sufficiently sound reasons to overcome the

special deference given to the administrative judge’s demeanor-based credibility

determinations. Faucher, 96 M.S.P.R. 203, ¶ 8; see also Purifoy v. Department of

Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016) (finding that the Board

must give deference to an administrative judge’s demeanor-based credibility

determinations).

Thus, in light of the finding that the appellant intentionally forwarded the

email, we agree that she knowingly gave incorrect or incomplete information to

the OSI investigators when she denied sending the email, denied recalling doing

so, and asserted that she did not believe she ever would. Accordingly, the

administrative judge correctly sustained the lack of candor charge.

We agree with the administrative judge that the appellant failed to establish her

affirmative defenses.

The appellant argues that the agency’s removal action constituted

whistleblower retaliation and reprisal for prior EEO activity. PFR File, Tab 1

at 12-13. The administrative judge considered both affirmative defenses but

found that the appellant failed to meet her burden of proving any violations. ID

at 15-27.

The appellant failed to establish her affirmative defense of whistleblower

retaliation.

To prevail on an affirmative defense of whistleblower reprisal, once the

agency proves its charges by a preponderance of the evidence, the appellant must

demonstrate by preponderant evidence that she made a protected disclosure or

engaged in protected activity and that the disclosure or activity was a contributing

factor in the adverse action. Shibuya v. Department of Agriculture, 119 M.S.P.R.

537, ¶ 19 (2013). If the appellant establishes a protected disclosure or activity

and contributing factor by preponderant evidence, then the burden of persuasion

shifts to the agency to prove by clear and convincing evidence that it would have

taken the same action in the absence of the appellant’s protected disclosure or

activity. 5 U.S.C. § 1221(e)(2); Shibuya, 119 M.S.P.R. 537, ¶ 32.

Here, the administrative judge found that the appellant met her burden of

proving that she made protected disclosures and engaged in protected activity,

and that these disclosures and activity were a contributing factor in the agency’s

decision to remove her. 5 ID at 15-22. The parties do not challenge these findings

on review, and we decline to disturb them. The administrative judge additionally

found that the agency proved, by clear and convincing evidence, that it would

have taken the same personnel action in the absence of the appellant’s disclosures

and activity. ID at 22-24. The appellant challenges the administrative judge’s

weighing of the various factors in reaching this conclusion. PFR File, Tab 1

at 12-13. Although we agree with the appellant that the administrative judge did

not correctly weigh the relevant factors, we nonetheless agree with the

administrative judge’s determination that the agency met its burden of proof.

In determining whether the agency has carried its burden, the Board will

consider all the relevant facts and circumstances, including 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 agency officials involved in

the decision; and (3) any evidence that the agency takes similar actions against

employees who are not whistleblower but who are otherwise similarly situated.

Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).

Regarding the first factor, the administrative judge found that the agency

had strong evidence in support of the appellant’s removal. ID at 22-23. We

agree with the administrative judge. The record evidence clearly established that

the appellant failed to follow instructions when she forwarded the email to a

non-management individual. IAF, Tab 10 at 6-7. The Board has found that when

an agency proves its charges, as is the case here, this is a factor weighing in favor

of agency on the clear and convincing issue. Shibuya, 119 M.S.P.R. 537, ¶ 36;

see also Pedeleose v. Department of Defense, 110 M.S.P.R. 508, ¶ 24 (finding the

agency met its clear and convincing burden by, among other things, providing

The administrative judge found that the appellant alleged that she disclosed voucher

fraud to the agency’s Office of Inspector General (OIG); disclosed to the OIG, Office of

Special Counsel, and the agency’s OSI that the proposing official involved in the prior

removal appeal engaged in inappropriate nepotism; and disclosed wrongdoing by her

ex-husband, who was not an agency employee, to various OIGs. ID at 18-19.

sufficient evidence to support the underlying charges), aff’d, 343 F. App’x 605

(Fed. Cir. 2009). Accordingly, because both charges were sustained and in light

of the record and testimonial evidence supporting these charges, we agree with

the administrative judge that the agency had strong evidence in support of its

action.

As to the second factor, the administrative judge found that the deciding

official worked at a separate facility from the appellant, did not know the

appellant or anyone involved with her whistleblowing, and only became aware of

the appellant’s whistleblowing from the appellant’s written reply to the proposed

removal. ID at 23. Other than a professional retaliatory motive, the

administrative judge found no motive from the deciding official to retaliate, and

thus concluded that this factor strongly supported the agency’s decision to

remove the appellant. ID at 23-24. The appellant challenges the administrative

judge’s analysis and conclusion that this factor weighed in favor of the agency.

PFR File, Tab 1 at 12. As explained below, we find that the deciding official had

some motive to retaliate.

In Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), the

court found that “an agency official’s merely being outside that whistleblower’s

chain of command, not directly involved in alleged retaliatory actions, and not

personally named in the whistleblower’s disclosure is insufficient to remove the

possibility of a retaliatory motive or retaliatory influence on the whistleblower’s

treatment.” Id. at 1371. Thus, when applying the second factor, “the Board will

consider any motive to retaliate on the part of the agency official who ordered the

action, as well as any motive to retaliate on the part of other agency officials who

influenced the decision.” Id. The court additionally recognized that individuals

“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 the criticism reflects on them

in their capacities as managers and employees.” Id. at 1370; see also Phillips v.

Department of Transportation, 113 M.S.P.R. 73, 83 (2010) (finding that

comments generally critical of agency’s leadership would reflect poorly on

officials responsible for monitoring the performance of the agency).

The appellant asserts that the proposing and deciding officials involved in

the agency’s first removal action, which was subsequently rescinded, were aware

of her whistleblowing and thus had a motive to retaliate. PFR File, Tab 1 at 12.

She further asserts that the agency transferring the case to a different facility does

not absolve the retaliatory motive, especially given that the deciding official in

the instant removal action knew and interacted with the individuals involved in

the first removal action. Id. Indeed, the evidence suggests that one of the

appellant’s disclosures specifically alleged that the proposing official for the first

removal action engaged in fraud, mismanagement, nepotism, and created a hostile

working environment. IAF, Tab 14 at 42-51. 6 Moreover, the deciding official

knew, via the appellant’s written response to the proposed removal, that the

appellant had engaged in numerous forms of whistleblowing against the first

proposing and deciding officials, as well as the agency in general. IAF, Tab 5

at 34-35.

Accordingly, we agree with the appellant that, at a minimum, the deciding

official here had some motive to retaliate. See Whitmore, 680 F.3d at 1370

(recognizing that individuals responsible for the agency’s performance overall

may have a motive to retaliate as whistleblowing criticism reflects on them in

their capacities as managers and employees). This is bolstered by the fact that

one of the disclosures at issue here directly implicated the first proposing official.

See id. at 1371 (recognizing that the Board must consider any motive to retaliate

As the administrative judge noted, the attachments associated with the appellant’s

written reply to the proposed removal, which contains the details of her disclosures

regarding the first proposing official, were not included in conjunction with the written

reply in the record. ID at 18. However, the attachments, as referenced in her written

reply, are included in the appellant’s prehearing submissions. IAF, Tab 5 at 34 -35,

Tab 14 at 42-71. As further evidence that the deciding official here received the

attachments, she specifically references the nepotism disclosure in the removal

decision. IAF, Tab 5 at 16.

on the part of other agency officials who may have influenced the decision).

Nonetheless, beyond their motives as individuals responsible for the agency’s

performance, we find that the proposing and deciding officials here lacked a

strong motive to retaliate because the whistleblowing was not directed at them

and they did not work at the facility about which the appellant made disclosures.

See Phillips, 113 M.S.P.R. 73, ¶ 29 (finding that, although one individual had a

strong retaliatory motive, two other individuals more heavily involved in the

agency’s adverse action lacked such a strong motive). In light of the above, we

modify the administrative judge’s analysis and find that the agency officials

involved in the instant removal action had some motive to retaliate.

Finally, regarding the third factor, the administrative judge found that the

absence of any evidence that the agency treated similarly situated

nonwhistleblowers more favorably rendered the factor neutral. ID at 24. The

appellant argues that the agency’s failure to present comparator evidence should

weigh against the agency. PFR File, Tab 1 at 12-13. Although there is no

affirmative burden on the agency to produce evidence with respect to each factor,

to the extent such comparator evidence exists, the agency is required to come

forward with all reasonably pertinent evidence relating to the third factor.

Whitmore, 680 F.3d at 1374. An agency’s failure to do so may be at its own

peril. Id. As a practical matter, the agency has far greater access to and control

over evidence of prior disciplinary actions taken against its employees than a

whistleblower-employee typically does. Id.

According to the proposed removal, the agency was unable to find specific

comparative discipline but stated that “similar comps found are consistent with

the proposed penalty” of removal. IAF, Tab 5 at 48. It appears that the agency

provided several other disciplinary actions brought by the agency for similar

misconduct. IAF, Tab 19 at 46-91, 99-106. The administrative judge did not

address these alleged comparators. Although several of the alleged comparator

individuals held the same title as the appellant, they appear to have worked in

different agency locations and with different chains of command. Id. at 46, 51,

60. Thus, it does not appear that they qualify as similarly situated

nonwhistleblowers for purposes of this factor. See Whitmore, 680 F.3d at 1373

(noting that, for other employees to be deemed similarly situated, all relevant

aspects of the appellant’s employment situation must be nearly identical to those

of the comparative employees). Regardless, we find that the lack of comparator

evidence cannot favor the agency. See id. at 1374 (finding an agency’s failure to

produce comparator evidence may be at the agency’s peril).

Overall, we find that the strength of the agency’s evidence in support of its

action outweighs any slight motive to retaliate and lack of comparator evidence.

See Phillips, 113 M.S.P.R. 73, ¶ 29 (finding the strength of the evidence in

support of the agency’s action outweighed the motive to retaliate); see also

Pedeleose, 110 M.S.P.R. 508, ¶ 24 (finding the clear and convincing burden met

when the agency established a strong case in support of its action and the absence

of a strong motive to retaliate by the officials responsible for the action).

Accordingly, we agree with the administrative judge that the agency met its clear

and convincing burden, and that accordingly, the appellant’s affirmative defense

of whistleblower retaliation must fail.

The appellant failed to establish her affirmative defense of reprisal for

prior EEO activity.

The appellant claimed that her removal was in retaliation for filing several

EEO complaints stemming from an allegation of disability discrimination and

harassment. IAF, Tab 5 at 34, Tab 13 at 13-14; Kohlhapp v. Department of

Homeland Security, MSPB Docket No. DE-0752-19-0202-I-1, Tab 18 at 5-6. The

administrative judge found that the appellant failed to establish that her prior

EEO activity was a motivating factor in the agency’s removal decision. ID

at 24-27. Although we agree with the administrative judge’s conclusion that the

appellant failed to establish her affirmative defense, we clarify that the proper

standard to apply in claims involving the protected activity at issue here is the

“but-for” causation standard, and we modify the initial decision accordingly.

Pridgen, 2022 MSPB 31, ¶ 47. Because we find that the appellant cannot meet

the lesser motivating factor standard, we conclude that she does not meet the

“but-for” standard. The outcome therefore remains the same.

The appellant alleged that she filed numerous EEO complaints against the

proposing official in the agency’s first removal action, in 2008 and 2011, in

which that proposing official was involved in the mediation. IAF, Tab 13 at 20.

Additionally, in December 2018, the appellant filed a formal EEO complaint

against the proposing official. Id. at 13-14, 20. The appellant informed the

deciding official in the instant appeal of her reprisal allegation in her reply to the

proposed removal. IAF, Tab 5 at 34. However, the deciding official in the

instant appeal was not named in any of the appellant’s EEO complaints, and there

is no evidence of any ambiguous statements or comments that would suggest a

retaliatory intent. Moreover, as discussed above, the agency’s reason for the

removal was based on strong evidence, and the record supports a finding that the

appellant engaged in the alleged misconduct. Therefore, the only indication that

the appellant’s prior EEO activity was even a factor in the removal is the

temporal proximity between the EEO complaint and her removal. We find that

this temporal proximity alone does not establish that the protected activity was a

motivating factor, let alone establish that it was a “but-for” cause of her removal.

The appellant does not challenge any of the specifics of the administrative

judge’s findings, but rather, she merely asserts that her arguments regarding

whistleblower retaliation are applicable to her EEO reprisal arguments. PFR File,

Tab 1 at 13. We find that this is insufficient to disturb the administrative judge’s

findings. Accordingly, the appellant has not established her affirmative defense

of reprisal for prior EEO activity.

The administrative judge correctly found that the agency established nexus and

that the penalty of removal was reasonable.

The administrative judge found a nexus between the charged misconduct

and the efficiency of the service. ID at 27-28. The appellant asserts that because

the agency cannot prove its charge of lack of candor, a nexus does not exist. PFR

File, Tab 1 at 11-12. We are unpersuaded. As set forth above, we agree with the

administrative judge that the agency sufficiently established both charges.

Moreover, the Board has found a nexus established based on a charge of failure to

follow instructions as it relates directly to the efficiency of the appellant’s

service. Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 24 (2014).

As for the penalty, the administrative judge found that the deciding official

considered the relevant aggravating and mitigating factors and that the penalty of

removal was within the tolerable limits of reasonableness. ID at 28-31. The

appellant asserts that the penalty is excessive. PFR File, Tab 1 at 13-14.

When, as here, all of the agency’s charges have been sustained, the Board

will review an agency-imposed penalty only to determine if the agency

considered all of the relevant factors and exercised management discretion within

tolerable limits of reasonableness. Archerda, 121 M.S.P.R. 314, ¶ 25. In

determining whether the selected penalty is reasonable, the Board gives due

deference to the agency’s discretion in exercising its managerial function of

maintaining employee discipline and efficiency. Id.

After reviewing the record, we find that the deciding official properly

considered the relevant factors in making her penalty determination. IAF, Tab 5

at 14-16, 22-25. The appellant argues that there was no evidence of intent, which

should have been considered a mitigating factor. PFR File, Tab 1 at 13-14; see

Arena v. U.S. Postal Service, 121 M.S.P.R. 125, ¶ 6 (2014) (noting that, in

evaluating the penalty, the Board will consider, first and foremost, the nature and

seriousness of the misconduct, including whether the offense was intentional),

aff’d per curiam, 617 F. App’x 996 (Fed. Cir. 2015) (Table). As discussed above,

we defer to the administrative judge’s credibility finding that the appellant

intended to forward the email in question. ID at 11. The appellant further argues

that, even if the forwarding were intentional, there must be an explanation of the

intent to warrant using it as an aggravating factor. PFR File, Tab 1 at 14. Indeed,

both the proposing and deciding officials here found the appellant’s misconduct

to be intentional and considered this in their penalty analysis. IAF, Tab 5

at 14-15, 47. Regardless, the Board has held that, if an agency proves an

employee’s failure to follow instructions was intentional rather than merely

negligent, it is free to use that fact as an aggravating factor in the penalty

selection. Hamilton, 71 M.S.P.R. at 556. Accordingly, the deciding official did

not err in considering this factor as aggravating. Finally, the appellant again

claims that because the lack of candor charge should not be sustained, the

removal penalty is excessive. As discussed above, we find that the administrative

judge correctly sustained the lack of candor charge. The appellant points to no

other relevant mitigating or aggravating factors that the deciding official failed to

properly consider. Accordingly, we find that the penalty of removal was within

the tolerable limits of reasonableness. Archerda, 121 M.S.P.R. 314, ¶ 27.

NOTICE OF APPEAL RIGHTS 7

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

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.

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:

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. 8 The court of appeals must receive your

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.

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