The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERNIECE R. MCGREGOR, DOCKET NUMBER
Appellant, CH-0752-18-0592-I-1
v.
DEPARTMENT OF THE ARMY, DATE: November 25, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
C. Mike Moulton , Elizabethtown, Kentucky, for the appellant.
Whitney Alfred Campbell and Timothy Harner , Fort Knox, Kentucky, for
the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal. For the reasons discussed below, we GRANT the
appellant's petition for review, VACATE the initial decision, and REMAND the
case to the regional office for further adjudication in accordance with this
Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant was a Supervisory Management Analyst with the U.S. Army
Human Resources Command until the agency removed her, effective
September 6, 2018, based on charges of conduct unbecoming and lack of candor.
Initial Appeal File (IAF), Tab 8 at 13-14, 22. The conduct unbecoming charge
was supported by five specifications in which the agency alleged that on various
occasions the appellant failed to follow her supervisor’s directives, refused to
meet with her supervisor, and acted unprofessionally and in a hostile manner. Id.
at 13. The lack of candor charge was supported by five specifications in which
the agency alleged that the appellant made various untruthful statements that her
supervisor had acted inappropriately toward her and displayed racist behavior at
work. Id. at 14.
¶3 The appellant filed a Board appeal challenging her removal and raising
affirmative defenses of harmful procedural error, discrimination based on her race
and color, and retaliation for equal employment opportunity (EEO) activity. IAF,
Tab 1 at 8, Tab 10. After a hearing, the administrative judge issued an initial
decision sustaining the appellant’s removal and finding that the appellant failed to
prove her affirmative defenses. 2 IAF, Tab 49, Initial Decision (ID) at 1-37. The
administrative judge further found that there was a nexus between the charges and
the efficiency of the service and that the penalty was within the tolerable limits of
reasonableness. ID at 37-41.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded to the petition for review, and the
appellant has filed a reply to the agency’s response. PFR File, Tabs 3-4.
2
The administrative judge sustained specifications 2-5 of the conduct unbecoming
charge and specifications 1-4 of the lack of candor charge. ID at 19-33.
3
ANALYSIS
The administrative judge did not err in her credibility determinations.
¶5 The context for this appeal largely concerns the appellant’s relationship
with her supervisor. According to the appellant, that relationship was marked by
her supervisor’s harassment and hostility, born at least in part out of his race,
color, and sex-based animus towards her. The agency denies that any such
hostility, harassment, or animus existed. Considering the hearing testimony and
written statements of the appellant and 15 other witnesses, the administrative
judge found the agency’s account to be more accurate and determined that the
appellant’s reports of harassment and discrimination were false. ID at 19. In
particular, she found that the evidence showed that the 15 individuals who either
testified or were interviewed and submitted sworn statements during the agency’s
internal investigation all said essentially the same thing—that the appellant’s
supervisor did not create a toxic or hostile work environment, did not single out
the appellant or treat her differently, and he was not a racist, sexist, liar, or
controlling micromanager as the appellant alleged. ID at 16-17. Rather, the
witnesses almost universally praised the appellant’s supervisor as a leader and
manager. ID at 18. In so finding, the administrative judge credited the testimony
of the appellant’s coworkers and supervisor, which she found to be direct and
straightforward as well as internally consistent and consistent with the
documentary evidence. ID at 17. In contrast, she found the appellant to be
defensive, largely unreliable, and dishonest and that her testimony aligned with
the documentary evidence and testimony suggesting that the appellant considered
herself beyond reproach and, when confronted with shortcomings, she would lash
out rather than take constructive criticism. ID at 18-19.
¶6 On review, the appellant argues that the administrative judge erred in her
credibility determinations by ignoring facts and improperly considering the
appellant’s supervisor’s demeanor. PFR File, Tab 1 at 13-16. She further
4
contends that the administrative judge erred by failing to consider that the
appellant’s coworkers lacked the opportunity and capacity to observe her alleged
mistreatment by her supervisor as well as by failing to consider that they may
have been biased because they were still employed by the agency. Id. at 16-17.
We find such arguments unavailing. A witness’s demeanor is a relevant factor for
an administrative judge to consider in making credibility determinations. See
Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). Additionally,
the administrative judge properly considered the testimony of the appellant’s
coworkers to the extent that they witnessed the relevant incidents. ID at 5, 7, 9,
22-24, 29, 31. Finally, the administrative judge found that the appellant’s
coworkers lacked a motive to lie about their interactions with the appellant or her
supervisor because, in light of the totality of the record and consistency of their
testimony, it would be implausible to find that they collectively conspired against
the appellant to refute her allegations while under oath in writing and during their
testimony. ID at 17, 32-33. Thus, we find that the appellant’s arguments on
review do not provide a sufficiently sound reason to overturn the administrative
judge’s credibility findings. Haebe v. Department of Justice, 288 F.3d 1288,
1301 (Fed. Cir. 2002) (stating that the Board must give deference to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on the observation of the demeanor of witnesses testifying at a
hearing and may overturn such determinations only when it has “sufficiently
sound” reasons for doing so).
The charge of conduct unbecoming is sustained.
¶7 In specification 2, the agency charged the appellant with refusing to follow
her supervisor’s May 9, 2018 directive that she personally write an executive
summary and task timeline and instead delegating the task to another employee.
IAF, Tab 8 at 13. The administrative judge found that the agency proved that the
appellant was directed to correct the executive summary, which was originally
5
drafted by the appellant’s subordinate in the appellant’s absence. ID at 21. She
further found that the appellant’s supervisor’s email and testimony made clear
that he had instructed the appellant to do the work, not delegate it to her
subordinates. ID at 4-5, 21. On review, the appellant argues that it was improper
for her supervisor to ask her to personally prepare the executive summary instead
of delegating it and that his action in doing so shows how he singled her out.
PFR File, Tab 1 at 17. However, the administrative judge considered and rejected
such an argument, finding that it failed to account for the circumstances under
which the record revealed that the appellant’s subordinate had created confusion
such that it was reasonable for the appellant’s supervisor to request that the
appellant rewrite it. ID at 21. The appellant also argues that her supervisor’s
email regarding the executive summary did not use the word “personally” and
that she later told her supervisor that she wrote the summary during a meeting on
May 16, 2018. PFR File, Tab 1 at 17-18. These arguments, however, do not
establish any error in the administrative judge’s finding that the May 9, 2018
email chain between the appellant and her supervisor showed that the appellant
was instructed to write the summary and that she failed to confirm that she
personally produced the summary at that time. ID at 4-5, 21-22.
¶8 In specification 3, the agency alleged that on May 9, 2018, the appellant
refused her supervisor’s directive that she meet with him regarding drafting an
executive summary, instead loudly proclaiming that any meeting between them
would be in the Chief of Staff’s office. IAF, Tab 8 at 13. The administrative
judge found that the agency proved that the appellant’s supervisor requested a
meeting with her, which the appellant refused, and instead went to the Chief of
Staff and made unfounded allegations against her supervisor. ID at 22. On
review, the appellant asserts that her actions did not amount to conduct
unbecoming a Federal employee, but rather were reasonable in light of her
supervisor’s harassment over the previous 3 months. PFR File, Tab 1 at 18. This
argument, however, amounts to disagreement with the administrative judge’s
6
findings that the appellant’s claims of harassment were false and not supported by
the record. 3 ID at 22; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06
(1997) (stating that the Board will give due deference to the credibility findings
of the administrative judge and will not grant a petition for review based on a
party’s mere disagreement with those findings); Broughton v. Department of
Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶9 In specification 4, the agency alleged that, during a meeting with her
supervisor and the Deputy Chief of Staff on May 16, 2018, the appellant pointed
her finger at her supervisor, raised her voice, and stated that he was a liar, she
didn’t trust him, wanted to move, and couldn’t work for him, before storming out
of the meeting. IAF, Tab 8 at 13. The administrative judge found that the
evidence, including testimony of the appellant’s supervisor and the Deputy Chief
of Staff as well as the appellant’s own secretly made recording of the meeting,
established that the appellant engaged in the charged conduct. ID at 23. The
appellant’s argument on review that her conduct was proper in light of her
supervisor’s harassment constitutes mere disagreement with the administrative
judge’s demeanor-based credibility findings and provides no basis to disturb the
initial decision. See Crosby, 74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R.
at 359.
¶10 In specification 5, the agency alleged that the appellant asked improper
questions in a hostile manner during a briefing to the Commanding General on the
results of a manpower study. IAF, Tab 8 at 13. The administrative judge found
that the appellant’s questions were designed to embarrass her supervisor in front
of the Commanding General and that the timing of her questions showed a lack of
judgment because she should have raised such questions well before the final
briefing instead of withholding her concerns until the spotlight was on her team.
ID at 24. On review, the appellant reiterates that G.H., one of her subordinates
3
The undercurrent of the appellant’s case is that her supervisor was hostile, demeaning,
and bigoted. PFR File, Tab 1 at 13-16
7
who attended the briefing, testified that he did not perceive the appellant’s
questions as being designed to embarrass her supervisor. PFR File, Tab 1 at 17.
However, the administrative judge considered this testimony and found that it did
not align with the testimony of several other coworkers who attended the briefing
and felt that the appellant’s questions were improper. ID at 24.
¶11 Because the agency proved specifications 2 through 5, the charge is
sustained. When more than one event or factual specification is set out to support
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).
The charge of lack of candor is not sustained.
¶12 The four specifications of this charge all pertain to statements that the
appellant made to the Chief of Staff about her supervisor’s conduct, as well as
statements that the appellant made during the ensuing investigation. IAF, Tab 8
at 14. Regardless of whether the appellant lacked candor in making these
statements, this charge cannot be sustained because, as explained more fully
below, it concerns protected activity for which the appellant may not be
disciplined.
The appellant proved that her affirmative defense of retaliation for equal
employment opportunity activity was a motivating factor in her removal.
¶13 The administrative judge found that the appellant failed to show that her
EEO activity was a motivating factor in her removal because the evidence
established that the appellant’s supervisor did not act improperly and did not
engage in the behavior reported by the appellant. ID at 36-37. On review, the
appellant argues that she has met her burden because the lack of candor charge
derives from her protected reports of discrimination and harassment, originally
made to the Chief of Staff, and later memorialized in a sworn statement as part of
the agency’s internal investigation into her claims. PFR File, Tab 1 at 24-25. We
agree with the appellant.
8
¶14 In her initial complaint to the Chief of Staff, and during the ensuing
investigation, the appellant alleged that her supervisor engaged in discriminatory
and harassing behavior against her based on her race, color, and sex. IAF, Tab 8
at 201-09, Tab 10 at 8-10. Under Title VII of the Civil Rights Act of 1964,
discrimination on these bases is prohibited in the Federal workplace. 42 U.S.C.
§ 2000e-16(a). Federal employees are also protected from retaliation for
engaging in activity protected under Title VII. As relevant here, to prove an
affirmative defense of retaliation for Title VII EEO activity, an appellant must
show that she engaged in such activity and that the protected activity was at least
a motivating factor in the agency’s action or decision. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 30. Under Title VII’s
antiretaliation provision, it is unlawful for an employer to discriminate against an
employee because she “has opposed any practice made an unlawful employment
practice by this subchapter, or because [she] has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.” 42 U.S.C. § 2000e-3(a).
¶15 There are two kinds of activity protected under this provision—opposition
activity and participation activity. Johnson v. Frost, EEOC Appeal No.
11980023, 2001 WL 1353704, at *6 (June 28, 2001). The participation clause
applies when the employee has participated in “the machinery set up by Title VII
to enforce its provisions.” Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978).
The opposition clause is more general and applies to virtually any opposition to
what an employee perceives to be a discriminatory practice by her employer,
including opposition accomplished outside of the Title VII procedural framework.
See Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn. , 555 U.S.
271, 276-78 (2009). Participation activity enjoys broader protection than does
opposition activity; the participation clause protects even false and malicious
charges of discrimination, whereas the opposition clause protects only reasonable,
good faith allegations of discrimination. Wyatt v. City of Boston, 35 F.3d 13, 15
9
(1st Cir. 1994); Equal Employment Opportunity Commission (EEOC)
Enforcement Guidance on Retaliation and Related Issues, § IIA (Aug. 25, 2016).
Because the appellant’s reports of discrimination and harassment were not made
reasonably and in good faith, they would be protected only if they were covered
under the participation clause, i.e., made within the context of an “investigation,
proceeding, or hearing under [42 U.S.C, chapter 21, subchapter VI].” 42 U.S.C. §
2000e-3(a).
¶16 There is no evidence that the appellant ever filed an EEO complaint—
formal or informal—spoke with an EEO counselor, or otherwise took any steps to
engage in the processes described in 29 C.F.R. §§ 1614.105-.110. Instead, the
record shows that the initial complaint and subsequent proceedings took place
within the context of the agency’s Anti-Harassment Policy Implementation
Procedures. IAF, Tab 8 at 60; Army Regulation 690-12, appendix D (Jan. 22,
2017). These anti-harassment procedures were promulgated in accordance with
the EEOC’s Management Directive (MD) 715 § II.C (Oct. 1, 2003), available at
https://www.eeoc.gov/federal-sector/management-directive/section-717-title-vii,
which requires each Federal agency to develop a comprehensive anti-harassment
policy to prevent and address harassment on all protected bases. See EEOC,
Instructions to Federal Agencies for MD-715 Section I The Model EEO Program
§ II.B.1, https://www.eeoc.gov/federal-sector/management-directive/instructions-
federal-agencies-md-715-section-i-model-eeo; see generally Rosamaria F. v.
Department of the Navy, EEOC Appeal No. 0120181068, 2020 WL 949668 at *6-
*8 (Feb. 14, 2020) (explaining the substantive requirements for anti-harassment
policies). The EEOC’s authority to issue MD 715 derives from 42 U.S.C.
§ 2000e-16(b), which authorizes it to “issue such rules, regulations, orders and
instructions as it deems necessary and appropriate to carry out its responsibilities
under this section.” For these reasons, we find that the statements at issue were
made within the context of an investigation or proceeding under 42 U.S.C,
chapter 21, subchapter VI, and are therefore protected under the participation
10
clause. As such, the appellant’s statements to the Chief of Staff and to the agency
investigator constitute protected activity regardless of their veracity. See Pettway
v. American Cast Iron Pipe Co., 411 F.2d 998, 1007-08 (5th Cir. 1969); Jazmine
F. v. Department of Defense, EEOC Petition No. 0320170007, 2023 WL 4653604,
at *6-*7 (July 5, 2023); EEOC Enforcement Guidance on Retaliation and Related
Issues, Notice 915.004, 2016 WL 4688886, at *5-*7 (Aug. 25, 2016)
¶17 The record also shows that this protected activity was at least a motivating
factor in the appellant’s removal. The proposal and decision documents
themselves are undisputed, direct evidence that the appellant’s removal was
based, at least in part, on statements she made during the anti-harassment
proceedings. IAF, Tab 8 at 14, 22. Under these circumstances, the agency could
not plausibly argue that the appellant’s removal was not motivated by retaliation.
¶18 Nevertheless, the appellant’s removal was not based on prohibited
retaliation alone (as under the lack of candor charge) but was also based on
legitimate, nondiscriminatory, nonretaliatory reasons (as under the conduct
unbecoming charge). The administrative judge, at least, considered lack of
candor to be the more serious of the two charges: “The lack of candor charge
alone warrants removal, and the remaining charge only bolsters the agency’s
decision.” ID at 40. However, when asked at the hearing whether she found any
certain specifications to be particularly serious, the deciding official identified
specifications from both charges and further testified that she would have
sustained the removal based on either charge standing alone. IAF, Tab 31-1,
Hearing Recording, Day 1, Track 1 at 16:55 (testimony of the deciding official).
We cannot determine on the existing record whether the agency would have
removed the appellant even in the absence of her protected activity, i.e., based on
the conduct unbecoming charge alone. Yet the question of causation must be
answered before the Board reaches a final disposition because the appellant will
be entitled to full relief under the statute only if she proves that retaliation was a
but-for cause of her removal. See Pridgen, 2022 MSPB 31, ¶ 22. Under the
11
particular circumstances of this case, we find it appropriate to remand the appeal
to the regional office for further adjudication of the appellant’s affirmative
defense. 4
¶19 We further observe that the appellant’s affirmative defense is intertwined
with the issue of penalty. When the Board sustains fewer than all of the agency's
charges, the Board may mitigate the agency’s penalty to the maximum reasonable
penalty as long as the agency has not indicated in either its final decision or in
proceedings before the Board that it desires that a lesser penalty be imposed on
fewer charges. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999).
Therefore, if the administrative judge does not find that the appellant proved
but-for causation, she should still determine whether the penalty of removal
exceeds the tolerable limits of reasonableness based on the sustained
specifications alone.
ORDER
¶20 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall allow the parties to file supplemental briefing on
whether the appellant’s protected activity was a but-for cause of her removal, or
whether the agency would have taken the same action based on the conduct
unbecoming charge alone. The administrative judge shall also allow the parties
to file supplemental briefing on the issue of penalty. If appropriate, the
administrative judge shall allow the parties to proffer additional evidence, which
may include a supplemental hearing, on these issues. The administrative judge
shall then issue a new initial decision in accordance with this Remand Order. The
4
On petition for review, the appellant renews her argument that her removal was the
product of harmful error. PFR File, Tab 1 at 23. For the reasons explained in the initial
decision, we agree with the administrative judge that the appellant did not prove this
affirmative defense. ID at 34. We also agree with the administrative judge that the
appellant did not prove that her race or color were motivating factors in her removal.
ID at 35-36.
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remand initial decision may incorporate the administrative judge’s previous
findings to the extent consistent with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.