The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL J. ASHE, DOCKET NUMBER
Appellant, PH-0752-14-0017-I-1
v.
DEPARTMENT OF VETERANS DATE: March 6, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Richard Heavey, Esquire, Medfield, Massachusetts, for the appellant.
Jonathan Smith, Bedford, Massachusetts, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction based on a waiver of Board
appeal rights in the last chance settlement agreement (LCSA) by which the parties
resolved the appellant’s prior removal. Generally, we grant petitions such as this
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
one only when: 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 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In 2012, the agency removed the appellant, a former GS-10 Recreational
Therapist, but returned him to duty several months later pursuant to an LCSA.
Initial Appeal File (IAF), Tab 5 at 9 (Standard Form 50), 18-19 (LCSA), 20-21
(2012 removal notice). The LCSA provided that the agency would hold the
removal in abeyance so long as the appellant did not commit any offense that
would “normally” result in disciplinary action during a 2-year last chance period.
Id. at 18. The appellant further agreed to waive his Board appeal rights if his
removal was reinitiated due to a violation of the LCSA. Id.
¶3 On August 27, 2013, the agency reinitiated the appellant’s removal on the
ground that he had violated the LCSA by engaging in conduct that, individually
or collectively, normally would result in disciplinary action when, on specified
dates, he: (a) failed to follow instructions to relocate to a new office and to
change his telephone extension; (b) failed to communicate important information
3
to another staff member in connection with an off-site patient trip; (c) failed to
respond to two emails from his supervisor that explicitly requested a response;
and (d) displayed in his office in plain view of visitors and patients an
inappropriate calendar showing a woman posing in a suggestive manner and a
synthetic skeleton. Id. at 10-11.
¶4 The appellant then filed a Board appeal. IAF, Tab 1. The administrative
judge notified the appellant that the Board lacks jurisdiction over an action taken
pursuant to an LCSA in which an appellant waives his Board appeal rights and
that, in order to establish that the appeal rights waiver should not be enforced, an
appellant must show either that: (1) he complied with the LCSA; (2) the agency
materially breached the LCSA or acted in bad faith; (3) he did not voluntarily
enter into the LCSA; or (4) the LCSA resulted from fraud or mutual mistake.
IAF, Tab 2 at 2 (citing Link v. Department of the Treasury, 51 F.3d 1577, 1582
(Fed. Cir. 1995)). The appellant argued that he had not breached the LCSA and,
therefore, the appeal rights waiver did not divest the Board of jurisdiction over
his appeal. IAF, Tab 4. The administrative judge determined that the appellant
had made a nonfrivolous allegation that he had complied with the LCSA and, as
such, that he was entitled to a jurisdictional hearing. IAF, Tab 12 at 3. After
holding a jurisdictional hearing, the administrative judge dismissed the appeal for
lack of jurisdiction, finding that the appellant failed to prove compliance based on
charges (b), (c), and the inappropriate calendar allegation of charge (d), which he
sustained and found each normally would result in disciplinary action under the
circumstances. 2 IAF, Tab 40, Initial Decision (ID).
¶5 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. On review, he argues that the administrative judge
made numerous adjudicatory errors, including that he erred in finding that the
2
The administrative judge did not sustain charge (a) or the part of charge (d) regarding
the synthetic skeleton displayed in the appellant’s office. ID at 4-6, 10-17.
Hereinafter, reference to charge (d) relates only to the sustained portion of the charge.
4
appellant had violated the LCSA, and incorrectly dismissed the appeal for lack of
jurisdiction. 3 PFR File, Tab 1. The agency has responded in opposition. PFR
File, Tab 3.
The administrative judge applied the correct burden of proof.
¶6 The appellant argues that the administrative judge erred in sustaining the
charges because the agency failed to prove that the charged conduct occurred,
establish a nexus between the charged conduct and the efficiency of the service,
or provide a legitimate reason for alleged disparate penalties imposed on the
appellant and two coworkers. PFR File, Tab 1 at 14-22. We disagree with the
appellant’s assertion that the agency bears the burden of proof in this matter. In a
traditional chapter 75 adverse action appeal, the agency bears the burden to
support the adverse action by preponderant evidence. 5 U.S.C. § 7701(c)(1)(B);
Walker v. Department of the Army, 102 M.S.P.R. 474, ¶ 4 (2006). However,
where, as here, an appeal involves an action taken pursuant to an agreement in
which the appellant has waived his Board appeal rights, the appellant—not the
agency—must prove by preponderant evidence that he did not breach the
agreement in order to invoke Board jurisdiction. Gibson v. Department of
Veterans Affairs, 160 F.3d 722, 726 (Fed. Cir. 1998).
The administrative judge correctly found that the appellant violated the LCSA.
¶7 The LCSA expressly provides that if the appellant committed “any conduct
offense that normally would result in disciplinary action in his position[,]
includ[ing] any charge of Failure to Follow Instructions,” he would be considered
in violation of the LCSA and removed. IAF, Tab 5 at 18 (emphasis added).
3
The appellant specifically argues that the administrative judge: (1) failed to
adequately resolve credibility issues and was inconsistent in his application of the
credib ility determinations for the appellant’s supervisor; (2) erred in his analysis of the
charges; (3) erred in finding that the agency’s evidence was sufficient to support the
charges against him; (4) failed to give sufficient weight to the circumstances and
mitigating factors surrounding each charge; and (5) failed to properly evaluate his
arguments regarding disparate treatment. PFR File, Tab 1 at 5-6, 8-25.
5
Thus, the agency could remove the appellant for any single incident that normally
would result in disciplinary action given the circumstances. 4 See id. For the
reasons that follow, we find that the administrative judge correctly determined
that charge (b), which alleged failure to communicate with a staff member, and
the sustained part of charge (d), which alleged that the appellant displayed an
inappropriate calendar in his office, each individually violated the LCSA and
warranted his removal. See ID at 4-18. We note, however, that we have concerns
about charge (c). 5 Because the removal is supported by charges (b) and (d), we
will not consider charge (c) on review.
The administrative judge correctly sustained charges (b) and (d).
¶8 The appellant does not dispute that, as alleged by charge (b), he failed to
communicate directly with the specified staff member regarding important
information about an off-site patient trip, but insists that he believed slipping the
monthly event calendar under her office door was sufficient to convey the
necessary information, as he asserts it had been in the past. PFR File, Tab 1 at
15-16. However, the evidence shows that the only information on the calendar
4
We agree with the administrative judge that the term “normally” is not ambiguous and
should be interpreted in accordance with its plain meaning, i.e., synonymously with
“usually,” “ordinarily,” “generally,” and “most of the time.” ID at 4.
5
In the notice of removal, charge (c) alleged : “On or about June 7 and 13, 2013, your
supervisor sent you an email requesting that you review a prospective work schedule
and to respond accordingly; however you failed to provide any response to her.” IAF,
Tab 5 at 10. The evidence shows, however, that the appellant responded by email
approximately 30 minutes after receiving the follow-up email on June 13. IAF, Tab 4,
Subtab I. The administrative judge found that “this charge is not artfu lly drawn, but the
gist of it is that appellant failed to timely respond to [his supervisor’s] June 7th email
message in which she asked employees to respond by close of business on June 12th.”
ID at 10. We note that the charge unambiguously alleges that the appellant failed to
“provide any response,” not that he failed to timely respond, to his supervisor’s June 7,
2013 email. IAF, Tab 5 at 10. The Board must review the agency’s decision solely on
the grounds invoked by the agency and may not substitute what it considers to be a
more appropriate basis for the agency’s action. Gonzalez v. Department of Homeland
Security, 114 M.S.P.R. 318, ¶ 7 (2010). In this case, it appears that the administrative
judge may have materially reworded the charge in light of the evidence presented,
which would be improper.
6
was the date, a time that presumably designated the departure time, and the
description “Annual Gray’s Beach Trip.” IAF, Tab 4, Subtab G. The calendar
clearly lacked relevant details, and we do not find the appellant’s contention that
he believed that this document was sufficient to “communicate” the necessary
information about the trip to be reasonable. Moreover, as noted by the
administrative judge, the fact that the appellant had communicated information
about the trip by slipping the calendar under a door in the past is not a defense to
the charge that he failed to follow instructions to communicate with a specific
person regarding the trip details on this particular occasion. ID at 8. Likewise,
the appellant’s contention that the staff member could have contacted him if she
had further questions is not a defense to the charge; the record shows that the
appellant was given the direct instruction to communicate with the staff member,
not vice versa. See PFR File, Tab 1 at 15; IAF, Tab 25 at 107.
¶9 The appellant further asserts that charge (b) was vague and that he was not
adequately informed of the charges against him. PFR File, Tab 1 at 13. In
situations such as these, due process requires that an appellant be told in what
way he allegedly breached the LCSA so that he can attempt to overcome the
waiver of appeal rights by proving that he complied with the LCSA. Lizzio v.
Department of the Army, 534 F.3d 1376, 1383 (Fed. Cir. 2008). As pointed out
by the administrative judge, the appellant was sufficiently notified of the charge
because he received the June 6, 2013 email containing the instruction to
communicate with the staff member and the June 19, 2013 follow-up email
advising that he had not complied with the instruction. See ID at 6-8; IAF, Tab
25 at 107.
¶10 Regarding charge (d), the appellant does not dispute that he displayed in his
office the swimsuit calendar showing a woman in a suggestive pose but states that
the calendar was usually covered, he was in the process of moving offices when it
was seen openly displayed, and he took it down immediately after being asked to
do so. PFR File, Tab 1 at 17. However, even if these purportedly mitigating
7
circumstances are true, the fact remains that the appellant displayed a calendar
that he knew or should have known was inappropriate for the federal workplace.
See IAF, Tab 25 at 76-77 (agency directive defining sexual harassment to include
displaying sexually-suggestive pictures). Further, his arguments that the calendar
does not constitute actionable sexual harassment or hostile work environment are
irrelevant. See PFR File, Tab 1 at 20. The appellant was charged with displaying
an inappropriate calendar in his office, not with sexual harassment or creating a
hostile work environment. See IAF, Tab 5 at 10. The Board has explained that
the introduction of sexually-explicit material into the work environment has the
potential to create a debilitating and discriminatory work environment and its
presence inherently impedes the full inclusion of all employees as professional
equals. Morrison v. National Aeronautics & Space Administration, 65 M.S.P.R.
348, 358 (1994). Thus, we agree with the administrative judge that the display of
the calendar in the instant case was inappropriate, especially because the
appellant worked in a therapeutic setting where it could have made some patients
feel uncomfortable and did offend at least one female staff member, and find that
the charge was correctly sustained. See ID at 17.
The administrative judge correctly determined that the conduct underlying
charges (b) and (d) normally would result in disciplinary action.
¶11 Based on testimony by the deputy director and a human resources specialist,
the administrative judge determined that the conduct alleged in each sustained
charge normally would result in disciplinary action due to the appellant’s
disciplinary record and the progressive nature of penalties. 6 See ID at 17-18. On
review, the appellant argues that L.R., a “similarly situated” employee, was not
6
In April 2011, the appellant was suspended for 14 days for failure to fo llow
instructions. IAF, Tab 25 at 130-31. In April 2010, he was suspended for inappropriate
behavior. Id. at 134. In June 2007, he was suspended for disrespectful conduct and
failure to follow orders. I d. at 135. In August 2006, he was suspended for
misrepresentation of fact, failure to follow instructions, disrespectful conduct, and
being absent without leave. I d. at 136.
8
disciplined for the “same conduct” underlying charge (b), and so it follows that
such action normally would not result in discipline. PFR File, Tab 1 at 22-23.
Although L.R. was copied on the email, the instruction to communicate with a
certain staff member about the patient trip was specifically directed to the
appellant only. IAF, Tab 25 at 107 (June 3, 2013 email). Thus, L.R. did not fail
to follow a direct instruction as the appellant did. 7
¶12 The appellant also appears to argue that discipline should not have been
imposed for displaying the swimsuit calendar in his office because doing so does
not constitute creating a hostile work environment or sexual harassment. PFR
File, Tab 1 at 20. Pursuant to the unambiguous language of the LCSA, however,
it is immaterial whether the conduct underlying the charges creates a hostile work
environment or constitutes sexual harassment; as discussed above, any conduct
that normally would result in disciplinary action constitutes a violation of the
LCSA. See IAF, Tab 5 at 18. An agency may discipline an employee for “such
cause as will promote the efficiency of the service” and, as previously explained
by the Board, exposing coworkers in the work environment to sexually explicit
material meets that standard. Morrison, 65 M.S.P.R. at 357. Thus, we agree with
the administrative judge that displaying in the federal workplace a calendar
showing a partially-clad woman in a suggestive pose normally would result in
disciplinary action. See ID at 18.
¶13 For these reasons, we discern no error with the administrative judge’s
findings that the appellant violated the LCSA, i.e., that he engaged in conduct
that normally would result in disciplinary action under the circumstances, and
7
Although any disparate treatment is explained by the fact that the appellant, not L.R.,
was specifically instructed to communicate with the staff member, the administrative
judge also explained that there was no evidence in the record to suggest that L.R. had a
discip linary record. ID at 18. Thus, it is reasonable that the appellant, who has a
history of disciplinary action for failure to fo llow instructions and inappropriate
behavior, normally would receive disciplinary action under the circumstances, while
L.R., who has no prior discipline, normally would not receive discipline under the
circumstances. See IAF, Tab 25 at 130-38 (prior d iscipline).
9
that the appeal rights waiver was enforceable. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services, 33 M.S.P.R.
357, 359 (1987) (same). As such, we agree that it was proper to dismiss the
appeal for lack of jurisdiction.
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. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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).
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 is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court's "Guide for
10
Pro Se Petitioners and Appellants," which is contained within the court's Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, 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 appellants before the court. 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.