The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEITH E. BROWN, DOCKET NUMBER
Appellant, SF-0752-13-0336-I-1
v.
DEPARTMENT OF DEFENSE, DATE: December 16, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Clifford H. Thomas III, Stockton, California, for the appellant.
Christine J. Kim, Stockton, California, 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 and the agency has filed a cross
petition for review of the initial decision, which reversed the appellant’s
indefinite suspension and denied his affirmative defenses of harmful error and
discrimination. Generally, we grant petitions such as these only when: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 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 neither party has established
any basis under section 1201.115 for granting the petition or cross petition for
review. Therefore, we DENY the petition for review and the cross petition for
review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
¶2 The agency proposed to indefinitely suspend the appellant based upon the
filing of a felony criminal complaint against him. See Initial Appeal File (IAF),
Tab 4, Subtab 4m (notice of proposed indefinite suspension), Subtab 4n (felony
criminal complaint). In its notice of proposed indefinite suspension, the agency
alleged that, based upon the filing of the criminal complaint, it had reason to
believe that the appellant had committed a crime for which a sentence of
imprisonment could be imposed. IAF, Tab 4, Subtab 4m. The appellant provided
a written response to the agency’s proposal, IAF, Tab 4, Subtab 4f, and the
deciding official sustained the agency’s proposed indefinite suspension and
placed the appellant on indefinite suspension effective April 1, 2013, IAF, Tab 4,
Subtab 4e. 2
2
Although the agency proposed to effectuate the appellant’s indefinite suspension less
than 30 days from the date of its notice, the agency issued a decision more than 30 days
after issuing its proposal notice. See 5 U.S.C. § 7513(b)(1) (providing that an employee
must have “at least 30 days’ advanced written notice [of a proposed adverse action]
3
¶3 The appellant filed an initial appeal challenging his indefinite suspension
and asserted affirmative defenses of harmful error and discrimination based upon
race, color, and age. See IAF, Tabs 1, 11. Following a hearing, the
administrative judge reversed the appellant’s indefinite suspension because “only
a criminal complaint had been filed against the appellant at the time of the
proposed suspension, [and] there was no evidence that an Information or Grand
Jury indictment had been filed.” IAF, Tab 16, Initial Decision (ID) at 4. The
administrative judge, however, denied the appellant’s affirmative defense of
harmful error, which was based on his allegation that the agency failed to conduct
an independent investigation into the facts surrounding his criminal charges, and
the administrative judge further found that the appellant failed to establish his
claims of discrimination based upon race, color, and age because, inter alia, each
of his proffered comparators were not criminally charged, thus justifying their
being placed on administrative leave, rather than on indefinite suspension. ID at
5, 7.
¶4 The appellant has filed a petition for review arguing that the administrative
judge erred in denying his affirmative defenses, and the agency has filed a cross
petition for review arguing that its indefinite suspension action should be
sustained under Hernandez v. Department of the Navy, 120 M.S.P.R. 14 (2013),
and Phillips v. Department of Veterans Affairs, 58 M.S.P.R. 12 (1993), aff’d,
17 F.3d 1443 (Fed. Cir. 1994) (Table). See Petition for Review (PFR) File, Tab 1
(the appellant’s petition for review), Tab 2 (the agency’s petition for review).
Separately, the appellant has filed a motion to dismiss the agency’s petition for
review arguing that the agency has failed to comply with the administrative
judge’s interim relief order because it has issued a subsequent decision letter
removing him from employment based upon his pleading guilty to a misdemeanor
unless there is reasonable cause to believe the employee has committed a crime for
which a sentence of imprisonment may be imposed[.]”).
4
violation of the California Vehicle Code. See PFR File, Tab 8. The agency has
filed an opposition to the appellant’s motion to dismiss. See PFR File, Tab 12.
The administrative judge’s initial decision reversing the indefinite suspension
action is AFFIRMED.
¶5 We have reviewed the agency’s argument that the administrative judge
erred in reversing the appellant’s indefinite suspension, and we discern no error
with the administrative judge’s findings. The record reflects that the agency
relied solely upon the filing of a felony criminal complaint against the appellant
when proposing to indefinitely suspend him based upon reasonable cause to
believe he had committed a crime for which a sentence of imprisonment could be
imposed. IAF, Tab 4, Subtab 4m. The Board has held that “reasonable cause” in
the context of an indefinite suspension based on criminal misconduct is virtually
synonymous with “probable cause,” which is necessary to support a grand jury
indictment, i.e., probable cause to believe that a crime has been committed and
that the accused has probably committed it. Hernandez, 120 M.S.P.R. 14, ¶ 7.
Generally, the issuance of an arrest warrant, or the actual arrest of an employee,
is insufficient to meet this standard. Id. (citing and discussing Dunnington v.
Department of Justice, 956 F.2d 1151, 1153 (Fed. Cir. 1992)). A formal judicial
determination following a preliminary hearing or an indictment following an
investigation and grand jury proceeding, however, is more than sufficient.
Hernandez, 120 M.S.P.R. 14, ¶ 7.
¶6 Here, we agree with the administrative judge that the filing of a criminal
complaint charging the appellant with three felony violations, without more, is
insufficient to sustain an indefinite suspension based upon reasonable cause to
believe that the appellant has committed a crime for which a sentence of
imprisonment may be imposed. ID at 4. There is no evidence in the record that
some formal judicial determination followed the filing of the felony criminal
complaint against the appellant, and we agree with the administrative judge that
under California law, the filing of a felony criminal complaint is only a
5
“preliminary accusation” which brings the defendant before a judicial officer for
a probable cause determination and is therefore insufficient to establish
reasonable cause to believe that the appellant has committed a crime for which a
sentence of imprisonment may be imposed. ID at 3; see Hernandez, 120 M.S.P.R.
14, ¶ 12 n.4. We further find Hernandez distinguishable because the appellant in
that case was charged with several criminal misdemeanor violations, and, under
California law, when a defendant is charged with a criminal misdemeanor and is
not in custody, no probable cause determination is made, thus making “a
misdemeanor complaint [] comparable to an indictment.”
Hernandez, 120 M.S.P.R. 14, ¶¶ 13-14. Because the felony criminal complaint
filed against the appellant in this case required some additional probable cause
determination under California law, Hernandez does not support the agency’s
argument on petition for review. Id. (discussing California criminal law and
procedure); ID at 4.
¶7 We further disagree with the agency that the appellant’s indefinite
suspension should have been sustained based on the “overall circumstances”
surrounding the filing of the felony criminal complaint. PFR File, Tab 2 at 2-3.
There is no evidence in the record that the agency undertook some internal
agency investigation or action “to satisfy itself that there was reasonable cause to
believe that a crime was committed for which imprisonment could be imposed,”
Barresi v. U.S. Postal Service, 65 M.S.P.R. 656, 666 (1994), and we disagree
with the agency’s suggestion that “the [a]ppellant has never really denied the
underlying facts of the criminal charges,” PFR File, Tab 2 at 3. To the contrary,
the record shows that the appellant denied the criminal nature of his conduct, see,
e.g., IAF, Tab 4, Subtabs 4f, 4r, and because the agency did not conduct its own
investigation in an effort to satisfy itself that the “statutory test of reasonable
cause” had been satisfied—i.e., probable cause to believe that a crime has been
committed and that the appellant probably committed it—we find that the agency
cannot demonstrate that a review of “all of the circumstances in this case”
6
establishes that it had reasonable cause to believe that the appellant had
committed a crime for which a sentence of imprisonment could be imposed,
Phillips, 58 M.S.P.R. 12, 15; see Barresi, 65 M.S.P.R. 656, 666-67 (rejecting the
agency’s attempt to justify indefinite suspensions based on employees’ arrests
and arraignments “without investigating the underlying facts behind” those
actions). The administrative judge’s initial decision reversing the appellant’s
indefinite suspension is AFFIRMED.
The administrative judge’s initial decision rejecting the appellant’s affirmative
defenses of discrimination is AFFIRMED.
¶8 We also have considered the appellant’s argument that the administrative
judge wrongly denied his affirmative defense of disparate treatment based upon
race, color, and age, 3 and we find that the record supports the administrative
judge’s finding of no discrimination on each of these bases. See PFR File, Tab 1,
Subtab A at 4-5; ID at 6-7. Once a hearing has been held and the record is
complete, the Board will not review discrimination claims using a burden-shifting
approach; rather, it will proceed directly to the ultimate question of whether the
appellant has proven by preponderant evidence that the agency’s actions were a
pretext for discrimination. See Berry v. Department of Commerce, 105 M.S.P.R.
596, ¶ 10 (2007). In determining whether the appellant has carried his ultimate
burden of proving discrimination, the administrative judge may consider evidence
going to the appellant’s prima facie case, such as whether he identified
similarly-situated comparator employees who were treated differently. See
3
The appellant also argues that the administrative judge wrongly denied his harmful
procedural error affirmative defense. See PFR File, Tab 1, Subtab A at 13. Because we
are affirming the administrative judge’s decision to reverse the appellant’s indefinite
suspension, the appellant would be entitled to no additional relief if we reached and
determined that he had proven his claim of harmful error. See 5 U.S.C. § 7701(c)(2)(A)
(“an agency’s decision may not be sustained . . . if the employee . . . (A) shows harmful
error in the application of the agency’s procedures at arriving at such decision”).
Accordingly, we will not address the appellant’s arguments of harmful error in his
petition for review.
7
McCurn v. Department of Defense, 119 M.S.P.R. 226, ¶ 16 (2013) (evidence of
the prima facie case can be relevant to the ultimate issue of whether the appellant
established discrimination by preponderant evidence). For employees to be
deemed similarly situated for the purposes of an affirmative defense of
discrimination, all relevant aspects of the appellant’s employment situation must
be “nearly identical” to those of the comparator employees. Hooper v.
Department of the Interior, 120 M.S.P.R. 658, ¶ 6 (2014) (quoting and citing
Adams v. Department of Labor, 112 M.S.P.R. 288, ¶ 13 (2009)).
¶9 We agree with the administrative judge that the record supports the
agency’s nondiscriminatory reasons for indefinitely suspending the appellant, and
we further agree with the administrative judge that the absence of comparator
evidence provides an additional basis for rejecting the appellant’s disparate
treatment claims. ID at 6-7. 4 The appellant argued below that several employees
were placed on administrative leave pending the agency’s inquiry into their
misconduct, whereas the appellant was indefinitely suspended. IAF, Tab 8,
Subtab EE. We agree with the administrative judge, however, that each of the
appellant’s proffered comparators were not similarly situated because none of
them were criminally charged. 5 ID at 6. We have reviewed the balance of the
record evidence, including the hearing testimony of the proposing and deciding
4
The inquiry into whether the appellant established discrimination is separate from
whether the agency established the propriety of its adverse action under Title 5. See
Marchese v. Department of the Navy, 32 M.S.P.R. 461, 464 (1987); ID at 7.
5
The record demonstrates that the agency initiated removal proceedings against an
employee who was on administrative leave upon his being charged with a criminal
violation. See IAF, Tab 10, Subtab S. We find that the agency’s treatment of this
employee does not support the appellant’s claim that the agency discriminated against
the appellant by placing him on indefinite suspension. See Lee v. Environmental
Protection Agency, 115 M.S.P.R. 533, ¶ 41 (2010) (an appellant must show that he was
“treated more harshly or disparately than the individual who was not a member of his
protected group” to establish a prima facie case of discrimination) (emphasis added);
PFR File, Tab 1, Subtab A at 4-5. In both cases, the agency initiated adverse action
proceedings against the employees upon the filing of criminal charges.
8
officials, and we concur with the administrative judge that there is no evidence
establishing that the agency’s decision to indefinitely suspend the appellant was
the result of impermissible discrimination. See Hooper, 120 M.S.P.R. 658, ¶¶ 6,
7 (finding that employees who received different charges of misconduct were not
similarly situated and therefore did not establish discriminatory treatment);
Hodge v. Department of Homeland Security, 114 M.S.P.R. 636, ¶¶ 9, 11-13
(2010) (overturning an indefinite suspension but denying a discrimination
affirmative defense because of the absence of evidence showing that the
suspension was motivated by discriminatory animus).
The appellant’s motion to dismiss the agency’s petition for review is DENIED.
¶10 Finally, we DENY the appellant’s motion to dismiss the agency’s petition
for review for failure to comply with the administrative judge’s interim relief
order. See PFR File, Tab 8. As the agency correctly argues, its decision to
initiate a subsequent removal action against the appellant was the subject of a
separate appeal. See MSPB Docket No. SF-0752-14-0310-I-1. This matter is
properly before the administrative judge for an initial adjudication. See, e.g.,
Rothwell v. U.S. Postal Service, 68 M.S.P.R. 466, 468-69 (1995) (forwarding a
challenge to a second removal action brought as a challenge to the agency’s
compliance with an interim relief order to the regional office for docketing as an
initial appeal). The appellant’s motion to dismiss the agency’s petition for review
for failure to comply with the administrative judge’s interim relief order is
DENIED.
ORDER
¶11 We ORDER the agency to cancel the suspension and retroactively restore
the appellant and to restore the appellant effective April 1, 2013. See Kerr v.
National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decision.
9
¶12 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency's
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board's Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶13 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board's Order and of the actions it
took to carry out the Board's Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶14 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board's Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board's Order. The petition
should contain specific reasons why the appellant believes that the agency has
not fully carried out the Board's Order, and should include the dates and results
of any communications with the agency. 5 C.F.R. § 1201.182(a).
¶15 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
10
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
11
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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. § 2000e5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.