The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JONATHAN P. HOWARD, DOCKET NUMBER
Appellant, DE-1221-14-0009-W-1
v.
DEPARTMENT OF THE INTERIOR, DATE: November 7, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jonathan P. Howard, Byron, Georgia, pro se.
Nanette Gonzales, Esquire, Lakewood, Colorado, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision which
denied his request for corrective action in connection with his individual right of
action (IRA) appeal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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. See 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, and based on the following points and authorities, 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 and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 Effective April 19, 2013, the agency terminated the appellant during
probation from his WG-11 Electrician position at Grand Teton National Park
based on performance issues, specifically, his failure to timely complete certain
assigned tasks. Initial Appeal File (IAF), Tab 4 at 67-70, 65. He filed a
complaint with the Office of Special Counsel (OSC) in which he alleged that the
agency’s action was taken because of disclosures made to various officials and to
his Congresswoman that the agency violated its own housing regulations and
policy, evidencing gross mismanagement and an abuse of authority. Id., Tab 1 at
12-30. The appellant complained that the agency had summarily refused to
consider his bid for a more financially feasible and child friendly living quarters
option when it became available. 2 He also claimed that his wife had filed
complaints of sexual harassment against a park employee. Id. at 15. After OSC
terminated its inquiry into the appellant’s complaint, he filed an IRA appeal with
the Board, id. at 1-6, and requested a hearing, id. at 1. In response to the appeal,
2
Because of the remoteness of the Park, the appellant was required to live on site at the
location, renting his living quarters from the agency.
3
the agency acknowledged that the appellant had exhausted his remedy before
OSC but urged that the appeal be dismissed, in part because it was the appellant’s
wife, not the appellant, who wrote to their Congresswoman. Id., Tab 4. The
appellant challenged the agency’s motion. Id., Tab 6. On the basis of the written
record, the administrative judge determined that the appellant had made sufficient
allegations to establish the Board’s jurisdiction over the appeal. Id., Tab 10.
¶3 The appellant subsequently withdrew his request for a hearing, id., Tab 14,
after which the administrative judge set a date for the close of the record, id., Tab
15. The parties made additional submissions. Id., Tabs 16-17, 19-21.
Thereafter, the administrative judge issued an initial decision in which he denied
the appellant’s request for corrective action. Id., Tab 24, Initial Decision (ID) at
1, 17. The administrative judge found that the appellant exhausted his remedy
before OSC, ID at 6, and that he made or was perceived to have made a protected
disclosure or was associated with his wife’s protected disclosure, ID at 6-10. In
this regard, and based on Board precedent, 3 the administrative judge found no
impediment to the appellant’s raising a claim that the agency terminated him, in
whole or in part, because of his wife’s protected activity. ID at 7. The
administrative judge then found that the appellant’s wife made protected
disclosures on June 25, June 26, and June 27, 2012, when she told the Housing
Coordinator, a Supervisory Facility Management Specialist, and the Deputy
Superintendent, respectively, that she reasonably believed the agency was
violating its bidding rules. 4 ID at 7-8. The administrative judge further found
that the appellant made a protected disclosure on March 21, 2013, when he
brought up the housing policy problem in a meeting with the union and the
3
Di Pompo v. Department of Veterans Affairs, 62 M.S.P.R. 44, 48 (1994) (an individual
who is the victim of reprisal because of protected disclosures made by a third party is
protected).
4
The agency admitted that, according to its written policy included with the bid
documents, the appellant was eligible to bid, and that it had erred in not accepting the
bid. IAF, Tab 4 at 55.
4
Supervisory Facility Operations Specialist and that the appellant’s wife made a
protected disclosure on March 29, 2013, when she sent her Congresswoman a
letter about the issue. ID at 9. The administrative judge briefly addressed other
alleged protected disclosures that the appellant mentioned in his OSC complaint,
but, because he did not develop them in his IRA appeal, the administrative judge
concluded that the appellant failed to establish that he made those protected
disclosures. ID at 9-10. The administrative judge then found, based on the acting
official’s knowledge of the disclosures and the timing of the personnel action,
that the appellant demonstrated that his wife’s three disclosures in June 2012
were a contributing factor in his termination. 5 ID at 10-11. The administrative
judge concluded, however, that the agency showed by clear and convincing
evidence that it would have terminated the appellant, even absent the protected
disclosures. ID at 12-17.
¶4 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1; the agency has filed a response, id., Tab 3; and the appellant has
replied to that response, id., Tab 4.
¶5 On review, the appellant argues, as to two of the protected disclosures that
the administrative judge found he failed to establish, that he now has documents
that prove his claim as to those disclosures. PFR File, Tab 1 at 5-6. The first
document is a single undated, untitled page he describes as “Intermountain
Regional Find,” and he refers specifically to “Finding #4.” Id. at 19. There the
agency appears to have considered, but rejected, the appellant’s claim regarding
what he perceived to be an unsafe feature of the home from which he sought to
move. The appellant has not shown that this document or the information
contained therein was previously unavailable before the record closed below,
despite his due diligence, and therefore we will not consider it. Grassell v.
5
The administrative judge found that the appellant did not establish that either his or
his wife’s disclosures in March 2013 were contributing factors to his termination. ID at
11-12.
5
Department of Transportation, 40 M.S.P.R. 554, 564 (1989); Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980). The second document is a
four-paged undated request for the appellant’s transfer in which he appears to
disclose concerns about safety issues. PFR File, Tab 1 at 13-16. According to
the appellant, his union representative provided this document to the agency on
August 28, 2012. Id. at 4. The appellant asserts that he located this document on
his computer after his termination. Id. at 4. Notwithstanding, the evidence is not
new. Grassell, 40 M.S.P.R. at 564 (to constitute new and material evidence, the
information contained in the documents, not just the documents themselves, must
have been unavailable despite due diligence when the record closed). In addition,
the appellant asserts that he requested the document in discovery but that the
agency did not provide it. IAF, Tab 1 at 4-5. However the record does not reflect
that the appellant brought any discovery issues to the attention of the
administrative judge, and his failure to do so then precludes his presenting this
document as new and material on petition for review. Rivoire v. U.S. Postal
Service, 103 M.S.P.R. 643, ¶ 5 (2006), aff’d, 244 F. App’x 351 (Fed. Cir. 2007).
Moreover, neither of these documents is material. They are not of sufficient
weight to warrant an outcome different from that of the initial decision because
the dispositive issue in this appeal, as found by the administrative judge, is
whether the agency proved by clear and convincing evidence that it would have
terminated the appellant, even absent the protected disclosures found by the
administrative judge to be attributed to him. Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980).
¶6 The appellant has also submitted an undated, unsigned document that he
states his wife submitted to law enforcement on August 1, 2012 to complain of
sexual harassment by an allegedly violent employee. PFR File, Tab 1 at 11-12.
For the reasons set forth above, this document is also neither new nor material.
Rivoire, 103 M.S.P.R. 643, ¶ 5; Grassell, 40 M.S.P.R. at 564; Avansino,
3 M.S.P.R. at 241. The appellant has also submitted a May 28, 2014 news article
6
about that same employee’s subsequent arrest. PFR File, Tab 1 at 17-18. This
document is new as it was, in fact, unavailable before the record closed below on
February 27, 2014, but it is not material because, as noted above, the issue in this
case is whether the agency showed by clear and convincing evidence that the
agency would have terminated the appellant, even absent the protected
disclosures the administrative judge found were attributed to him. Russo,
3 M.S.P.R. at 349.
¶7 The last of the documents the appellant has submitted on review is a
memorandum dated December 12, 2012, from his supervisor regarding matters
related to the merits of the termination. PFR File, Tab 1 at 20-21. The appellant
asserts that this document is fabricated. Id. at 5. However, he also acknowledges
that he received it during discovery. Id. His failure to have submitted the
document into the record below precludes it from being considered as new
evidence now, and therefore we will not consider it. Avansino, 3 M.S.P.R. at 214.
Moreover, the appellant has failed to show why this document is material to the
dispositive issue of this appeal. 5 C.F.R. § 1209.2(c); see Russo, 3 M.S.P.R. at
349.
¶8 The appellant argues on review that his case would have benefitted if he had
testified and the administrative judge had the opportunity to observe the
witnesses. PFR File, Tab 1 at 4. As noted, the appellant originally requested a
hearing, IAF, Tab 1 at 1, but his attorney 6 subsequently notified the
administrative judge of the withdrawal of the request. Id., Tab 14. To the extent
the appellant now alleges that his attorney misled or misinformed him as to the
implications of that decision, it is well established that an appellant is responsible
for the errors of his chosen representative. Sofio v. Internal Revenue Service,
7 M.S.P.R. 667, 670 (1981).
6
Represented by counsel below, the appellant appears pro se on petition for review.
7
¶9 The appellant disputes the administrative judge’s finding that the agency
proved by clear and convincing evidence that the agency would have terminated
him even absent the protected disclosures that were attributed to him. PFR File,
Tab 1 at 6. In reaching this finding, the administrative judge addressed the
appropriate factors as set forth by our reviewing court in Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), and considered all of the
pertinent evidence in the record in the aggregate, see Whitmore v. Department of
Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). Addressing the first Carr factor,
the administrative judge found that the agency’s evidence in support of the
termination was strong, specifically, the fact that the official who authored the
termination letter was notified in the fall of 2012 by two individuals with
significant experience in supervising electricians that the appellant was having
performance problems. ID at 13. The administrative judge found that the author
of the termination letter was credible when he denied having any animosity
towards or bias against the appellant, notwithstanding that he received the
appellant’s wife’s disclosure regarding the agency’s alleged violation of the
house-bidding policy. ID at 13-14. In this regard, the administrative judge found
that the appellant’s wife acknowledged that, despite her complaint, the author of
the termination letter was respectful towards her. The administrative judge
further found that the proposing official’s reasons for initiating the termination
action through the individual who authored the termination letter were also strong
inasmuch as the proposing official’s reasons were consistent with and supported
by other evidence in the record. ID at 14.
¶10 On review, the appellant challenges the administrative judge’s credibility
findings. Although this case was decided on the written record, the Board has
approved adapting to such cases the principles for resolving credibility issues.
Goode v. Defense Logistics Agency, 45 M.S.P.R. 671, 674 n.2 (1990). In
reaching his credibility findings, the administrative judge applied the appropriate
factors set forth by the Board in Hillen v. Department of the Army, 35 M.S.P.R.
8
453, 458 (1987). Notwithstanding the appellant’s disagreement, we discern no
reason to reweigh the evidence or substitute our assessment of the record
evidence for that of the administrative judge. Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105-06 (1997).
¶11 Addressing the second Carr factor, the administrative judge considered all
the pertinent evidence of record that related to each of the agency officials who
had any involvement in the appellant’s termination, but found that any retaliatory
motive was slight, at best. ID at 15-16. And, in addressing the third Carr factor,
the administrative judge considered evidence that the deciding official had
terminated one other employee during probation for misconduct reasons, an
employee who was not a whistleblower, but he afforded such evidence only
limited weight, given that the appellant was removed for performance reasons,
not misconduct. Weighing all three factors, and considering all evidence that
reasonably detracts from the agency’s claims, the administrative judge concluded
that the agency proved by clear and convincing evidence that it would have
terminated the appellant, even absent his protected activity. ID at 16. The
appellant’s mere disagreement with the administrative judge’s findings does not
provide a basis for the Board’s review. Crosby, 74 M.S.P.R. at 105-06.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
9
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
10
appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.