Opinion

Collin Bailey v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Apr 30, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.4%

testimony of the ELR Specialist

How later courts described this case

testimony of the ELR Specialist

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The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

COLLIN BAILEY, DOCKET NUMBER

Appellant, AT-0714-17-0722-B-1

DEPARTMENT OF VETERANS DATE: April 30, 2026

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tyler Sroufe , Esquire, and Michael Ignatius Sheeter , Esquire,

Dallas, Texas, for the appellant.

William Robert Boulware and Karen Rodgers , Montgomery, Alabama,

for the agency.

Bradley Flippin , Nashville, Tennessee, for the agency.

Teri Walker , Decatur, Georgia, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

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

which found that he did not prove his affirmative defenses of race and sex

discrimination and reprisal for prior equal employment opportunity (EEO)

activity. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision were

not consistent with required procedures or involved an abuse of discretion, and

the resulting error affected the outcome of the case; or new and material evidence

or legal argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, we conclude that the petitioner has not established any basis under section

1201.115 for granting the petition for review. Therefore, we DENY the petition

for review. We MODIFY the remand initial decision to reevaluate some of the

factors for assessing witness credibility, as set forth in Hillen v. Department of

the Army, 35 M.S.P.R. 453, 458 (1987), and to supplement the administrative

judge’s analysis. Except as expressly MODIFIED in this regard, we AFFIRM the

remand initial decision.

BACKGROUND

This appeal involves the appellant’s removal from service in August 2017.

In a prior decision, the Board reversed the removal and ordered status quo ante

relief due to a procedural error on the part of the agency. However, the Board’s

decision also remanded the appeal for further adjudication of affirmative defenses

that could lead to additional relief if proven by the appellant. Bailey v.

Department of Veterans Affairs, MSPB Docket No. AT-0714-17-0722-B-1,

Appeal File (RF), Tab 23, Remand Initial Decision (RID) at 1-2; see Bailey v.

Department of Veterans Affairs, MSPB Docket No. AT-0714-17-0722-I-1,

Remand Order (Jan. 10, 2024). After further developing the record, the

administrative judge concluded that the appellant did not prove any of his

affirmative defenses. RID at 2-11 (discussing Pridgen v. Office of Management

and Budget, 2022 MSPB 31).

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant asserts that the administrative judge erred in

finding that he did not prove his affirmative defenses. Petition for Review (PFR)

File, Tab 1 at 6-14. He also asserts that the administrative judge erred when he

allowed the agency to present evidence that his race, sex, and/or EEO activity

was not a motivating factor in the removal action, despite his sanctions order. Id.

at 14-15. As detailed below, these assertions do not warrant a different outcome.

In evaluating the appellant’s race discrimination claim, the administrative

judge stated that his determination turned on the credibility of three witnesses—

the appellant, a former Human Resources (HR) official whom the appellant called

to testify, and an Employee/Labor Relations (ELR) Specialist whom the agency

called to testify. RID at 5-8. The relevant factors for evaluating witness

credibility 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. Importantly, 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).

As further described in the remand initial decision, the former HR official

testified that the agency excluded her from processing the appellant’s removal

action and she believed that the removal was motivated by race. RID at 4-5. The

appellant testified that he submitted requests to initiate disciplinary action against

two white subordinates, which the ELR Specialist refused to process, but his

request to initiate disciplinary action against an African American subordinate

was processed. The appellant also claimed that a white supervisor was not

removed for conduct that was at least as serious as his own. 2 RID at 5. As for

the ELR Specialist, he testified that he drafted the proposal and decision letters

for the appellant’s removal, and he provided the evidence file to the management

officials. 3 Id.

In assessing this testimony, the administrative judge noted that credibility

factors (3)-(7) were the most pertinent. He concluded that the ELR Specialist’s

testimony was credible while the testimony of the appellant and the former HR

official was not. RID at 6. The appellant challenges the administrative judge’s

assessment of the aforementioned factors on review. PFR File, Tab 1 at 10-14.

Although we modify the remand initial decision as to Hillen factors (3) and (5), a

different outcome is not warranted.

The administrative judge noted that the appellant did not offer into evidence any

documentation to corroborate his claim that a similarly situated white employee was

treated more favorably despite allegedly similar conduct. RID at 8. He therefore found

the appellant’s testimony on this point unpersuasive. Id.

In the remand initial decision, the administrative judge stated that the ELR Specialist

testified that the removal was based on the charged misconduct. RID at 5. We disagree

with the administrative judge’s characterization of this testimony. PFR File, Tab 1

at 15. Instead, based on our review of the testimony, the ELR Specialist testified that

his draft was based on the “evidence.” RF, Tab 22-5 (testimony of the ELR Specialist).

The ELR Specialist testified that he did not know whether the deciding official

considered anything outside of the evidence file. Id. (testimony of the ELR Specialist).

We modify the initial decision in this regard.

Regarding factor (3), the administrative judge noted that the appellant

admitted to the charged misconduct, which included a consensual relationship

with a subordinate and an inappropriate text message. RID at 6. The

administrative judge determined that the appellant’s admission of such serious

misconduct was tantamount to an acknowledgment that the agency had a

legitimate, nondiscriminatory reason for its action and was inconsistent with his

claim that the agency was motivated by his race. RID at 6-7. On review, the

appellant asserts that it was not “logical” for the administrative judge to consider

the appellant’s admission that he engaged in the charged misconduct as a prior

inconsistent statement related to his race discrimination claim. PFR File, Tab 1

at 11. We agree. In fact, we are not aware of any inconsistent statements made

by the appellant in this regard. Therefore, we vacate the administrative judge’s

analysis of Hillen factor (3).

Regarding factor (4), the administrative judge determined that the appellant

had an obvious self-interest in testifying in a light most favorable to himself, and

the former HR official had a clear motive to testify in a manner that was

unfavorable to the agency because she had been removed. RID at 7. He also

appeared to find that the ELR Specialist, who did not propose or decide the

removal, did not have any such bias. Id. Additionally, the administrative judge

found unpersuasive the appellant’s contention that the ELR Specialist may have

acted in a discriminatory manner in cases involving employees against whom the

appellant requested disciplinary action because the appellant did not examine the

ELR Specialist about these employees. Id.

We have considered the appellant’s assertion on review that the former HR

official was not biased against the agency. PFR File, Tab 1 at 11. But we are not

persuaded. The fact that the former HR official was removed from the agency

makes it likely that she harbored some bias against the agency. See, e.g.,

Rodriguez v. Department of Homeland Security, 108 M.S.P.R. 76, ¶ 18 (2008)

(upholding the administrative judge’s determination that a witness was not

credible because of potential bias arising from his removal by the agency), aff’d,

314 F. App’x 318 (Fed. Cir. 2009), overruled on other grounds by Thomas v. U.S.

Postal Service, 116 M.S.P.R. 453, ¶ 10 (2011).

Regarding factor (5), the administrative judge found that the appellant’s

admission of the charged misconduct contradicted his claim that the removal was

motivated by race. RID at 7. Additionally, he noted that it strained credulity that

the former HR official would testify that the relationship between the appellant

and the subordinate was purely “emotional” when she was not present to witness

the emotional nature of the relationship and considering the prurient language in

the text message itself. RID at 7-8. The appellant asserts that the administrative

judge, similar to his analysis of factor (3), improperly relied on his admission that

he engaged in the charged misconduct to conclude that he contradicted his claim

that the agency engaged in race discrimination. PFR File, Tab 1 at 12. The

appellant also challenges the administrative judge’s conclusion that the former

HR official was not credible when she testified that the relationship between the

appellant and subordinate was purely “emotional.” Id.

Similar to our analysis of factor (3), we do not find that the appellant’s

admission of the charged misconduct constitutes contradictory evidence related to

his race discrimination claim. We therefore vacate the administrative judge’s

analysis of Hillen factor (5) in this regard. We have considered the former HR

official’s testimony that she reviewed the factfinding report, in which both the

appellant and the subordinate employee stated that the relationship was

“emotional” and “platonic,” and she reviewed the text messages between the

appellant and the subordinate employee, including what she described as the

“more explicit” text messages from the subordinate to the appellant. RF,

Tab 22-2 (testimony of the former HR official). Yet we find that the former HR

official’s characterization of the nature of the relationship between the appellant

and subordinate is belied by the graphic and sexual nature of the text message

from the appellant to the subordinate that is in the record. Bailey v. Department

of Veterans Affairs, MSPB Docket No. AT-0714-17-0722-I-1, Initial Appeal File,

Tab 6 at 46-49. Therefore, we discern no error with the administrative judge’s

consideration of this contradictory evidence under Hillen factor (5).

Regarding factor (6), the administrative judge found it inherently

improbable that the deciding official (or any other management official) would

state out loud that the removal was due to an improper “interracial” relationship,

as testified to by the former HR official, because it amounted to a clear admission

of illegal conduct. RID at 8. The administrative judge also found that the

credibility of this allegation was further diminished by the appellant’s decision

not to call the deciding official as a witness, despite her being approved as such.

Id. On review, the appellant acknowledges that it may be improbable for

management to make such a statement, but he contends that it is much more

improbable for a former HR official in a high capacity to make up such a

statement. PFR File, Tab 1 at 12-13. We are not persuaded by this assertion.

Indeed, for the reasons described herein and in the remand initial decision, we

share the administrative judge’s concerns about the credibility of the former HR

official. Accordingly, we discern no error with the administrative judge’s

conclusion that it was inherently improbable that the deciding official or any

other management official made the statement as described by the former HR

official.

Finally, regarding factor (7), the administrative judge found that the

testimony of the former HR official was “strident” and “resentful,” even before

her removal from agency employment came to light, and he concluded that her

demeanor “significantly detracted from the credibility of her testimony.” RID

at 8. By contrast, the administrative judge concluded that the testimony of the

ELR Specialist was “calm and straightforward.” Id.

Once again, 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, 288 F.3d at 1301. The appellant has not identified such reasons on

review. For example, we are not persuaded by the appellant’s assertion on review

that the terms “strident” and resentful” “can easily be replaced with ‘passionate’

or ‘zealous.’” PFR File, Tab 1 at 13. We acknowledge that the administrative

judge did not make any findings about the appellant’s demeanor during his

testimony, id., but it is not for the Board to make such findings in the first

instance.

To challenge the ELR Specialist’s credibility, the appellant attaches to his

petition for review an October 13, 2017 affidavit from the ELR Specialist in the

appellant’s EEO matter. Id. at 18-28. We could not find this affidavit in the

record before the administrative judge, and the appellant did not seek to offer the

ELR Specialist’s affidavit into evidence during his testimony or thereafter,

despite questioning him about its contents. 4 Evidence offered for the first time on

petition for review merely to impeach a witness’s credibility is not generally

considered new and material. Bucci v. Department of Education, 42 M.S.P.R. 47,

55 (1989).

Even if we consider this affidavit, a different outcome is not warranted.

Notably, in the affidavit, the ELR Specialist was asked about whether the

appellant was subjected to a hostile work environment based on race, sex, and

reprisal when he was issued the proposed removal letter. PFR File, Tab 1 at 25.

The ELR Specialist stated in his affidavit that his role was “to provide advice and

guidance to management,” but he did “not have the authority to make any

decision on disciplinary actions.” Id. at 27. During his testimony, the ELR

Specialist stated that he drafted the notice of proposed removal, but he did not

We acknowledge that, due to some technical difficulties during the hearing, the

appellant’s attorney was unable to present the ELR Specialist with a copy of his

affidavit to review. RF, Tab 22-5 (testimony of the ELR Specialist). However, these

difficulties should not have prevented the appellant from seeking to move this affidavit

into evidence before the record closed during the hearing.

have authority to make any decisions. RF, Tab 22-5 (testimony of the ELR

Specialist). We find no meaningful inconsistency between his affidavit and his

testimony in this regard.

Based on our review of the relevant Hillen factors and the evidence in the

record, we discern no error with the administrative judge’s conclusion that the

ELR Specialist was a more credible witness or his conclusion that the appellant

failed to prove his race discrimination claim. 5 The slight modifications described

above do not warrant a different result.

Turning to the appellant’s sex discrimination claim, the administrative

judge noted that there was “rather sparse” evidence. RID at 9. The

administrative judge acknowledged the former HR official’s claim that the

appellant was considered a “good African American male” and therefore subject

to the “purported Alabamian proscription against intimate relations between

himself and white females.” Id. The administrative judge stated that he

understood this testimony to be attributed to the deciding official because she (the

deciding official) allegedly mentioned the appellant’s “interracial” relationship

with the subordinate. Id. However, for the reasons described in his analysis of

the race discrimination claim, the administrative judge found that the former HR

official’s testimony in this regard was not credible. Id. The administrative judge

discussed that the appellant’s testimony regarding sex discrimination was

confined to his requests for disciplinary action to the ELR Specialist, and he

concluded that the appellant’s statement that the ELR Specialist processed his

disciplinary action request for a female employee tended to undermine any claim

of differential treatment based on sex. Id. The administrative judge therefore

concluded that the appellant did not prove his sex discrimination claim by

preponderant evidence. RID at 9-10.

Contrary to the appellant’s assertion on review, the administrative judge did not

overlook evidence to support his contention that the agency has a history of treating

African American employees differently than white employees for the same or similar

actions. E.g., PFR File, Tab 1 at 8-10.

The appellant asserts on review that the subordinate female employee was

not disciplined for their relationship. PFR File, Tab 1 at 14. Even if true, we do

not conclude that this evidence—standing alone—constitutes preponderant

evidence that the appellant’s sex played a role in the removal action, particularly

given the administrative judge’s credibility determinations, discussed above and

in the remand initial decision.

Lastly, regarding the appellant’s claim of EEO reprisal, the administrative

judge noted that the only evidence in support of this claim is the fact that the

appellant filed an informal EEO complaint concerning his reassignment several

months before the removal action and his management chain (to include at least

the proposing official) was aware of his protected activity. RID at 10. The

administrative judge noted, among other things, that the Board has held that a

responsible management official’s knowledge of an EEO complaint, standing

alone, is not enough to find that the EEO complaint was a motivating factor in the

removal action. Id. (citing Gardner v. Department of Veterans Affairs,

123 M.S.P.R. 647, ¶ 34 (2016)). In the absence of any other persuasive evidence,

the administrative judge concluded that the appellant did not prove this claim.

RID at 10-11. On review, the appellant asserts that the temporal proximity of the

appellant’s prior EEO activity “heavily infers reprisal.” PFR File, Tab 1 at 14.

For the reasons described herein, this assertion is not persuasive.

We have considered the appellant’s remaining assertions on review, but

none warrants a different outcome. 6

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

The administrative judge granted the appellant’s motion for sanctions and, in relevant

part, imposed the sanction that the agency may not present testimony, evidence, or

argument during the hearing to the effect that the appellant’s race, gender, or prior EEO

participation was not a motivating factor (i.e., “played no part”) in the agency’s

decision to remove the appellant. RF, Tab 9 at 7-8. During the hearing, the

administrative judge asked the ELR Specialist whether he heard or became aware that

the appellant’s race, gender, or EEO participation played a role in the decision-making

process, and the ELR Specialist responded no. RF, Tab 22-5 (testimony of the ELR

Specialist). We disagree with the appellant’s assertion on review that the

administrative judge allowed the agency to provide testimony that contradicts the

sanctions order. PFR File, Tab 1 at 14-15. Importantly, the agency did not inquire

about such evidence; rather, the administrative judge asked a question, and the witness

responded. Notably, the appellant’s attorney did not object to the administrative

judge’s question or otherwise ask to strike this question and/or the ELR Specialist’s

answer from the record. See Sofio v. Internal Revenue Service, 7 M.S.P.R. 667,

670 (1981) (stating that the appellant is responsible for the errors of his chosen

representative).

Even if we determined that the administrative judge erred in asking the ELR Specialist

this question, it is an adjudicatory error that is not prejudicial to the appellant’s

substantive rights and provides no basis for reversal of the remand initial decision .

Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). In other words,

were we to exclude the ELR Specialist’s testimony in this regard, a different outcome

would not be warranted. That is because, for the reasons described herein and the

remand initial decision, we are not persuaded that the appellant proved by preponderant

evidence that his race, sex, or prior EEO activity was a motivating factor in the removal

action.

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.

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:

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

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