Eric Rose v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERIC ROSE, DOCKET NUMBER

Appellant, AT-0752-12-0063-B-1

v.

DEPARTMENT OF DEFENSE, DATE: September 17, 2014

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.

Stacey Turner Stokes, Esquire, Fort Lee, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

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

which sustained his removal for absence without leave (AWOL). For the reasons

discussed below, we GRANT the appellant’s petition for review and REMAND

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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the case to the regional office for further adjudication in accordance with this

Order.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant was a WG-04 Store Worker for the Defense Commissary

Agency, a component of the Department of Defense. Initial Appeal File (IAF),

Tab 6, Subtab 4A. The appellant’s duty station was the Gulfport Naval

Construction Battalion Center (NCBC), a Department of the Navy (Navy)

installation of which the Defense Commissary Agency is a tenant. Id. On

June 10, 2011, Naval Military Police issued the appellant criminal tickets for

carrying a concealed weapon (a fixed blade knife) and making a disturbance in a

public place. Remand Appeal File (RAF), Tab 11 at 97, 108-09. Effective the

same day, the Navy barred the appellant from entering the NCBC under threat of

fine and imprisonment. IAF, Tab 6, Subtab 4J. The reasons for the barment were

(1) carrying a concealed weapon, and (2) threats of violence against persons

inside the commissary. Id.

¶3 Because he was unable to enter the NCBC, the appellant was unable to

report for duty. The agency began carrying him in AWOL status. IAF, Tab 6,

Subtab 4L. The appellant filed a constructive suspension appeal, Rose v.

Department of Defense, MSPB Docket No. AT-0752-11-0814-I-1, IAF, Tab 1,

and the administrative judge reversed the action, finding that the agency had

constructively suspended the appellant, id., Tab 18.

¶4 During the pendency of that appeal, on October 21, 2011, the agency

removed the appellant based on two charges: (1) “Absence from Duty Occasioned

by your being Barred from entering the Gulfport Naval Construction Battalion

Center,” and (2) “Absent without Leave.” IAF, Tab 6, Subtabs 4A, 4D, 4H. The

appellant filed the instant appeal, IAF, Tab 1, and the administrative judge

reversed the removal, IAF, Tab 10, Initial Decision (ID) at 2, 7. He merged the

charges and found, based on the same reasoning that he employed in the

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constructive suspension appeal, that the agency failed to show that it properly

carried the appellant in AWOL status during the charged dates. ID at 2, 4-7. The

agency filed petitions for review in both cases.

¶5 The Board reversed the initial decision in the constructive suspension

appeal and dismissed it for lack of jurisdiction. Rose v. Department of Defense,

118 M.S.P.R. 302 (2012). It found that the appellant did not meet the standard

established in Hollingsworth v. Defense Commissary Agency, 82 M.S.P.R. 444

(1999), for determining whether an employee being barred by one governmental

entity from being able to report for duty to another governmental entity has been

constructively suspended. Rose, 118 M.S.P.R. 302, ¶¶ 4, 10-14. In the instant

removal appeal, the Board vacated the initial decision and remanded for further

adjudication. IAF, Tab 12, Remand Order at 2, 5. The Board found that the

initial decision could not stand to the extent that it was based on the same faulty

analysis that the administrative judge employed in the constructive suspension

appeal. Remand Order at 4. However, the Board found that it could not issue a

final decision on review because the appellant had withdrawn his affirmative

defense of retaliation for protected activity and waived his right to a hearing

conditioned on a finding reversing the removal action. Remand Order at 4-5. It

therefore remanded the appeal to give the appellant an opportunity to request a

hearing and pursue his affirmative defense. Remand Order at 5.

¶6 On remand, the appeal was assigned to a different administrative judge,

who conducted a hearing and sustained the removal. RAF, Tab 29, Remand

Initial Decision (RID) at 2, 9. He found that the agency proved its charge of

AWOL, the appellant received due process, the appellant did not prove his

retaliation defense, and the action promoted the efficiency of the service. RID at

2-9. The appellant has filed a petition for review, Remand Petition for Review

(RPFR) File, Tab 1, and the agency has filed a response, RPFR File, Tab 3.

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The agency established a nexus between the charge and the efficiency of the

service.

¶7 On review, the appellant argues that it does not promote the efficiency of

the service to remove an employee who has done nothing wrong. RPFR File, Tab

1 at 13-16. He does not dispute that he was AWOL, but he argues that the

barment underlying his AWOL was faulty. Id.

¶8 The details of the events leading up to the appellant’s arrest and barment

are as follows. On June 7, 2011, the appellant complained to a coworker that his

immediate supervisor intended to “write him up” for arriving at work early and

working through lunch. He told the coworker that if the agency management did

not handle it appropriately, he would take matters into his own hands and “heads

are going to roll.” Hearing Transcript (HT) at 244-45 (testimony of the

appellant). Two days later, on June 9, 2011, the coworker met in person with the

Store Director, the appellant’s third-line supervisor, and registered several

complaints about the appellant, including that the appellant had made this “heads

are going to roll” comment. Id. at 97-101 (testimony of the Store Director). The

coworker stated that he was concerned by this “threat” because the appellant

owned a gun. 2 Id. at 99 (testimony of the Store Director). The Store Director

relayed this information by email to the Zone Manager, the appellant’s

fourth-level supervisor. RAF, Tab 11 at 32. However, the Store Director

recharacterized the appellant’s “heads are going to roll” comment as follows:

The supposed comments were that [the appellant] was getting fed up

with this place, that management head’s [sic] were going to roll, and

if [the agency] did not fix it he has a gun and can take care of it

himself.

2

There appears to be some dispute about whether the appellant had ready access to a

firearm at this time. HT at 245-46, 293-95 (testimony of the appellant). It is

undisputed, however, that the appellant never mentioned any firearm in connection with

his “heads are going to roll” comment; this was merely additional information

volunteered to the Store Director by the appellant’s coworker. Id. at 99 (testimony of

the Store Director), 245, 281 (testimony of the appellant); RAF, Tab 11 at 101.

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Id. The following day, June 10, 2011, the Zone Manager telephoned the Store

Director and told him to report the matter to base security. HT at 115 (testimony

of the Store Director). The Store Director did so, and gave base security

substantially the same account that he had given the Zone Manager. Id. at 115-16

(testimony of the Store Director).

¶9 Later that morning, while the appellant was working behind the store, he

was approached by several police officers with weapons drawn. They asked him

whether he had any concealed weapons. HT at 250 (testimony of the appellant).

The appellant indicated that he had two knives—one clipped to the outside of his

pants pocket, and one on a lanyard around his neck. Id. The officers also took a

statement from the appellant’s coworker who made the original complaint about

the appellant’s alleged threat. RAF, Tab 11 at 101. The officers then issued the

appellant two tickets—one for carrying a concealed deadly weapon and one for

causing a disturbance in a public place. Id. at 108-09. That afternoon, the police

officers compiled information about the incident and presented it to the acting

commander of the Gulfport NCBC. HT at 195-96 (testimony of the acting base

commander). RAF, Tab 11 at 97. The acting commander reviewed the

information and issued an order barring the appellant from entering Gulfport

NCBC upon threat of fine and imprisonment. HT at 196 (testimony of the acting

base commander); IAF, Tab 6, Subtab 4J. The appellant then was escorted off

base. RAF, Tab 11 at 97.

¶10 Eventually, on October 18, 2011, the Assistant United States Attorney

decided not to prosecute the appellant and instead moved to dismiss the charges.

IAF, Tab 8, Subtab 6. The appellant’s attorney forwarded this information to the

Gulfport NCBC commanding officer. Id. The same acting commander who

issued the initial barment order considered the information but found it

insufficient to prove that the charges underlying the barment were, in fact,

dismissed. He therefore declined to modify or rescind the order. HT at 201-09

(testimony of the acting base commander). On October 21, 2011, before the

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appellant’s attorney could get a copy of the court order dismissing the charges,

the agency removed the appellant. 3 IAF, Tab 6, Subtabs 4A, 4D.

¶11 The record shows that, during the barment period, the commanding officer

asked the Store Director whether he had any comments regarding the barment.

HT at 119 (testimony of the Store Director). The Store Director declined to

comment, informing the commanding officer that he did not want to influence his

decision. Id. However, when the commanding officer asked the Store Director

whether any store employees were in fear of the appellant, the Store Director

replied in the affirmative. Id. The record also shows that the appellant needed a

knife for opening hundreds of boxes every day—a major part of his job. HT at

253-54 (testimony of the appellant). The record further shows that the

commissary at which the appellant worked offers similar knives for sale. Id. at

256-57 (testimony of the appellant); RAF, Tab 18 at 60.

¶12 The appellant has presented a substantial case that the barment order

underlying the AWOL charge was problematic. The appellant never threatened

anyone. He merely stated that “heads are going to roll.” Although this statement

might be indelicate, we find that it is a hyperbolic idiom that no reasonable

person would construe as an actual threat. See Metz v. Department of the

Treasury, 780 F.2d 1001, 1002-03 (Fed. Cir. 1986) (to determine whether words

constituted a threat, the Board must use “the connotation which a reasonable

person would give to the words”) (quoting Meehan v. U.S. Postal Service,

718 F.2d 1069, 1075 (Fed. Cir. 1983)). Nor did the appellant mention a gun in

connection with his statement. The Store Director added this embellishment in

his report to base security. When the appellant was eventually barred, it was on

the basis that he engaged in this hyperbole and was carrying a tool that he used

for his job and that was available for purchase at Gulfport NCBC. Finally, the

criminal charges against the appellant were dismissed but not in time to offer

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The record indicates that it would have taken “a few weeks” to obtain a copy of the

court’s order. IAF, Tab 8, Subtab 6 at 6.

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sufficient proof of the matter to the Navy, so that the barment might be modified

or lifted.

¶13 Nevertheless, the appellant was not removed for the conduct underlying the

barment. He was removed for AWOL arising out of the barment. IAF, Tab 6,

Subtabs 4A, 4D, 4H. We agree with the administrative judge that an order

barring an individual from a military installation is committed to the sound

discretion of the military base commander, and that the Board lacks the authority

to review such an order. RID at 8; see Department of Navy v. Egan, 484 U.S.

518, 529-330 (1988) (unless Congress specifically has provided otherwise, courts

traditionally have been reluctant to intrude upon the authority of the executive in

military and national security affairs); United States v. Albertini, 472 U.S. 675,

690 (1985) (a commanding officer has broad authority to issue a barment letter,

as long as the letter is not patently arbitrary or discriminatory); Cafeteria and

Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886,

893-96 (1961) (commanding officers traditionally have exercised unfettered

discretion in excluding civilians from their area of control). The Board implicitly

recognized this in Hollingsworth, 82 M.S.P.R. 444, ¶ 7, when it found that an

analysis of a constructive suspension based on such a barment must focus on the

actions and obligations of the employing agency—not on the actions of the

military department or the propriety of the barment itself.

¶14 To show that an adverse action is taken for the efficiency of the service, an

agency must establish a nexus between the proven charge and the efficiency of

the service. Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 18

(2013). It is well-established that a proven charge of AWOL satisfies that

requirement. Bryant v. National Science Foundation, 105 F.3d 1414, 1417 (Fed.

Cir. 1997) (the nexus between the charged offense and the efficiency of the

service is automatic when the charged offense is AWOL). The agency was not

required to establish a nexus between the efficiency of the service and the

conduct giving rise to the barment but which was not part of the charge.

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The administrative judge correctly applied Hollingsworth to the facts of this case.

¶15 The appellant argues that the administrative judge should not have used the

four-part test set forth in Hollingsworth, 82 M.S.P.R. 444, for analyzing whether

the agency initiated his absence and in any event, the administrative judge applied

Hollingsworth incorrectly. RPFR File, Tab 1 at 24-27.

¶16 As to the applicability of Hollingsworth to the instant appeal, we agree with

the appellant that the Board’s jurisdiction is not in question and that

Hollingsworth is not on point to the extent that it pertains to the Board’s

jurisdiction over a constructive suspension appeal. RPFR File, Tab 1 at 24-25.

However, Hollingsworth is instructive on the issue of whether the agency

properly carried the appellant in an AWOL status. 82 M.S.P.R. 444, ¶ 7; see

Boscoe v. Department of Agriculture, 54 M.S.P.R. 315, 325 (1992) (to prove an

AWOL charge, an agency must show that the employee was absent from duty, and

either that his absence was not authorized or that his request for leave was

properly denied). In any event, the appellant has not advanced an alternative

analytical framework, and he also has conceded the AWOL charge. RPFR File,

Tab 1 at 14; RAF, Tab 24 at 4.

¶17 As to the analysis of the Hollingsworth factors, we disagree with the

appellant that the Board’s penalty jurisprudence amounts to an “agency policy,

rule, regulation, contractual provision, or other authority to offer assistance to the

employee with the circumstances beyond his control,” thus meeting the third part

of the test. 82 M.S.P.R. 444, ¶ 7; RPFR File, Tab 1 at 24-25. If the Board’s

penalty jurisprudence, which applies equally to all respondent agencies, were

sufficient to satisfy this factor, then this factor would be satisfied in every case,

and there would have been no need for the Board to list it as an element of a

constructive suspension under these circumstances. Moreover, the Board already

decided in the appellant’s related constructive suspension appeal, Rose,

118 M.S.P.R. 302, ¶¶ 9-13, that he did not satisfy the Hollingsworth factors, and

we find that the appellant is collaterally estopped from relitigating the issue in the

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instant appeal. See Killeen v. Office of Personnel Management, 558 F.3d 1318,

1323 (Fed. Cir. 2009) (collateral estoppel bars litigation of an issue if the

identical issue was actually litigated and necessarily decided in a prior case where

the interests of the party to be precluded were fully represented). In any event, as

noted above, supra ¶ 16, the appellant has conceded the AWOL charge.

The appellant did not prove his affirmative defense of retaliation for protected

activity.

¶18 The appellant challenges the administrative judge’s analysis of his

affirmative defense of retaliation for protected activity under 5 U.S.C.

§ 2302(b)(9). RPFR File, Tab 1 at 27-30; RID at 6-7. As relevant here, that

section prohibits any employee who has the authority to take, direct others to

take, recommend, or approve any personnel action, to take any personnel action

against any employee because of the exercise of any appeal, complaint, or

grievance right granted by any law, rule, or regulation. 5 U.S.C. § 2302(b)(9)(A).

Because the record on this issue is complete, we proceed to the ultimate question

of whether the appellant has met his overall burden of proving illegal retaliation.

See Marshall v. Department of Veterans Affairs, 111 M.S.P.R. 5, ¶ 16 (2008).

¶19 The appellant filed a host of complaints over the years, including

complaints to the Office of Special Counsel, RAF, Tab 18, 254-65, the

Occupational Safety & Health Administration, id. at 278-81, the Inspector

General, id. at 285-86, and the Defense Commissary Agency Hotline, id. at

289-90, as well as equal employment opportunity (EEO) complaints, id. at

97-100, 242. Without deciding whether all of these activities are covered under

5 U.S.C. § 2302(b)(9)(A), we find that at least some of them are—in particular,

the EEO complaints. See Smith v. Department of Agriculture, 64 M.S.P.R. 46,

62-63 (1994) (filing an EEO complaint is protected activity under 5 U.S.C.

§ 2302(b)(9)). In addition, the proposing official, the deciding official, and the

Store Director were all aware of at least some of the appellant’s complaints.

RPFR File, Tab 1 at 28; RAF, Tab 18 at 97-100, 242; HT at 38 (testimony of the

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proposing official), 72-76 (testimony of the deciding official), 96 (testimony of

the Store Director).

¶20 For the following reasons, however, we agree with the administrative judge

that the appellant has not established a nexus between his protected activity and

his removal, the personnel action at issue in this appeal. RID at 7. In deciding

this issue, the Board will weigh the seriousness of the proven charge against the

relevant officials’ motive to retaliate. Crawford-Graham v. Department of

Veterans Affairs, 99 M.S.P.R. 389, ¶ 26 (2005). In this regard, we find that

agency management in general had a motive to retaliate against the appellant.

The appellant had a reputation for filing complaints, and managers sometimes

discussed this fact among themselves, at least in the context of trying to resolve

the complaints. HT at 76 (testimony of the deciding official). There is no

evidence that the deciding official was the subject of any of the appellant’s

complaints, so his motive to retaliate would be relatively small, arising only from

the administrative burden that the complaints placed on him and the poor

reflection that they might have on the operations under his control. The

proposing official, however, had a strong motive to retaliate because she was the

subject of a pending EEO complaint by the appellant at the time she proposed his

removal. RAF, Tab 18 at 97-100; HT at 10-11 (testimony of the proposing

official).

¶21 Nevertheless, the proven charge was very serious. The appellant had been

AWOL for nearly 3 months when his removal was proposed, with no reliable

indication that he would ever be able to return to duty. IAF, Tab 6, Subtab 4H.

His continued absence caused an additional burden to his coworkers, who had to

work extra hours in order to make up for the time that the appellant was missing.

HT at 18-19 (testimony of the proposing official). Under those circumstances, we

find it more likely than not that the proposing official would have taken action

against the appellant even if she had no retaliatory motive. Furthermore, as noted

above, the proposing official waited a significant period of time after the

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appellant’s barment to propose his removal. This does not lend itself to a finding

that she seized the barment as an opportunity to avenge herself or to rid herself of

a troublesome employee. Rather, it suggests that she waited, despite the attendant

disruption in the workplace, to see if the appellant would be able to return to

work before she determined to propose his removal. As for the deciding official,

considering his lesser motive to retaliate in conjunction with the circumstances

discussed above, we find that his removal decision was probably not an act of

retaliation.

¶22 As for the Store Director, his role in the removal was only indirect. There

is no evidence that he had any discussions with or otherwise influenced the

proposing or deciding officials in this matter. However, his original, inaccurate

report to base security set all of these events in motion, and he later declined to

take the opportunity that the base commander presented him to influence the

Navy to allow the appellant to return to work. Supra, ¶ 11. Furthermore, the

agency failed to advance any nonretaliatory explanation for why the Store

Director reported inaccurate information to base security. The appellant thus

argues that his removal was a product of the “seeds planted” by the Store

Director. RPFR File, Tab 1 at 29-30. This appears to be a cat’s paw theory of the

case—a theory under which the retaliatory motive of the Store Director

influenced the appellant’s removal even though the Store Director did not

personally implement the removal. See Aquino v. Department of Homeland

Security, 121 M.S.P.R. 35, ¶ 19 (2014).

¶23 We find, however, that there is an insufficient connection between the Store

Director’s actions and the barment to impute a retaliatory motive to the removal.

Specifically, we agree with the administrative judge that the Navy’s independent

investigation of the matter is key. RID at 7. The U.S. Supreme Court has

explained that a supervisor’s biased report of alleged misconduct will be a

proximate cause “if the independent investigation takes it into account without

determining that the adverse action was, apart from the supervisor’s

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recommendation, entirely justified.” Staub v. Proctor Hospital, 131 S. Ct. 1186,

1193 (2011). In this case, it is likely that the Navy would never have conducted

its investigation in the first place if it were not for the Store Detector’s inaccurate

report. However, there is no evidence that the Navy relied on the report itself in

making its barment decision. The record shows instead that the Military Police

gathered evidence independently, including the appellant’s fixed blade knife and

his coworker’s statement that the appellant intended to “knock some heads off.”

RAF, Tab 11 at 97-114. Notably, the coworker specifically told the Military

Police that the appellant did not say he had a weapon. Id. at 103. The statements

of probable cause made no mention of the Store Director’s report. RAF, Tab 18

at 35, 37. Nor did they make any mention of the erroneous information contained

in that report, i.e., the appellant allegedly threatening to use a firearm. Id. As for

the Store Director telling the base commander that agency employees feared the

appellant, we find that the Store Director offered this information only when the

base commander specifically requested it. HT at 119 (testimony of the Store

Director). There is no evidence that this answer was untruthful or that it would

have been any different had the Store Director not been the subject of EEO

complaints filed by the appellant. For these reasons, we find that any retaliatory

actions on the part of the Store Director were not a proximate cause of the

barment or the subsequent removal.

We lack the authority to review the appellant’s claim that he was denied due

process as to the barment order.

¶24 The appellant argues that the agency denied him due process because he had

no opportunity to respond to the charges that led to his AWOL, and the notice and

opportunity to respond to the proposed removal were just empty formalities.

RPFR File, Tab 1 at 17-24.

¶25 To the extent that the appellant is arguing that he was denied due process

concerning the barment itself, for the reasons discussed above, the Board lacks

the authority to review the barment order. Supra, ¶ 13. Due process with respect

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to the agency’s removal action does not require that the appellant have an

opportunity to contest the barment order. See Buelna v. Department of Homeland

Security, 121 M.S.P.R. 262, ¶¶ 23-24 (2014).

¶26 The Board has recently issued a line of cases explaining an employee’s due

process rights in the analogous context of security clearance and sensitive

position eligibility cases. Ryan v. Department of Homeland Security, 2014 MSPB

64, ¶¶ 7-11; Flores, 121 M.S.P.R. 287, ¶ 12; Buelna, 121 M.S.P.R. 262, ¶¶ 27-28.

Specifically, to the extent that there may exist viable alternatives to the proposed

removal, i.e., alternatives that were not prohibited, impracticable, or outside

management’s purview, an employee has the right to invoke the discretion of a

deciding official with the authority to select such alternatives. Buelna,

121 M.S.P.R. 262, ¶¶ 27-28. Because the Board announced this standard after the

administrative judge issued his initial decision, the parties did not have a full and

fair opportunity to develop the record in this regard, and we find that the current

record is insufficient for the Board to make a determination at this time as to

whether that standard has been met. We therefore remand this appeal for further

adjudication on the due process issue.

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ORDER

¶27 For the reasons discussed above, we REMAND this case to the regional office

for further adjudication in accordance with this Remand Order. The

administrative judge shall afford the parties an additional opportunity to address

the due process issue in light of the Buelna line of cases.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.