James B. Henderson, IV v. Department of Transportation

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES B. HENDERSON, IV, DOCKET NUMBER

Appellant, DA-0752-14-0209-I-1

v.

DEPARTMENT OF DATE: March 13, 2015

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL ∗

Bobby Devadoss, Esquire, Dallas, Texas, for the appellant.

Raymond Martinez, Fort Worth, Texas, 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

affirmed his removal. Generally, we grant petitions such as this 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

∗

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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. Except as

expressly MODIFIED by this Final Order concerning the appellant’s

whistleblowing claim, we AFFIRM the initial decision.

¶2 The agency removed the appellant on three charges: (1) providing false

information on government records; (2) providing a false statement; and

(3) failure to follow instructions. Initial Appeal File (IAF), Tab 5, Subtabs 4b,

4d. The deciding official declined to sustain the agency’s fourth charge,

improper conduct. Id. Most of the charged misconduct involves the appellant’s

actions on the morning of November 15, 2012. See IAF, Tab 5, Subtab 4d. The

appellant’s supervisor recounted in a sworn statement that, after he learned that

the appellant was on his way to the airport in Victoria, Texas, that morning in

order to perform preventative maintenance, instead of attending a previously

scheduled mandatory training session at the Houston office, he personally

instructed the appellant to continue to Victoria and to perform the maintenance

rather than to immediately turn around and return to the office for the training.

Id., Subtab 4l at 8-9. According to the supervisor, the appellant returned to the

office much sooner than he would have had he followed those instructions and

was then evasive when asked about the events of that day in a December 11, 2012

meeting. Id. The agency subsequently conducted an investigation, id, Subtabs

4l-4m, which led to the instant action, id., Subtabs 4b-4d.

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¶3 The appellant filed a timely appeal and requested a decision on the written

record. IAF, Tabs 1, 12. After receiving the parties’ close of record submissions,

the administrative judge affirmed the agency’s action. IAF, Tab 21, Initial

Decision (ID). On the first charge, the administrative judge found that the agency

established by preponderant evidence that the appellant provided false

information on government records when he made seven entries in the agency’s

Simplified Automated Logging system regarding his presence, and the periodic

maintenance he allegedly performed, at the airport in Victoria on November 15,

2012. ID at 2-8. On the second charge, the administrative judge determined that

the agency established that the appellant made three false statements on March 6,

2013, regarding his performing maintenance at the airport in Victoria on

November 15, 2012. ID at 8-10. On the third charge, the administrative judge

found that the agency established that the appellant failed to follow his manager’s

November 15, 2012 instruction set forth above, as well as his October 30, 2013

instruction to the appellant to reassemble an emergency light fixture. ID at

10-11. The administrative judge also found that the appellant failed to establish

his affirmative defenses of discrimination and reprisal for protected equal

employment opportunity (EEO) and whistleblowing activity and that the

appellant’s removal was both reasonable under the circumstances and promoted

the efficiency of the service. ID at 12-21.

¶4 In his petition for review, the appellant first contends that the

administrative judge did not consider his affidavit, which he claims, contrary to

the administrative judge’s finding, see ID at 11, that he signed under oath before

a notary, Petition for Review (PFR) File, Tab 1 at 4. He also contends that the

administrative judge incorrectly concluded that he violated the agency’s

maintenance orders, arguing that he did not falsely report his presence at the

airport in Victoria on November 15, 2012, because the maintenance handbook

allows technicians working on multiple facilities at one location to choose one of

those facilities at which to capture their arrival and departure times such that

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technicians are not required to be physically present at the facility where the

maintenance is performed. Id. He also argues, as he did below, that he did not

misrepresent the maintenance tasks he performed that day because he performed

them in keeping with past practice by calling the air traffic controller at Victoria,

who then called an incoming pilot, in order to verify that the approach lights in

question were operating. Id. at 4-5; see ID at 8; IAF, Tab 5, Subtab 4l at 64-65,

74-75. Regarding his alleged failure to follow his supervisor’s instructions in

October 2013to repair a light fixture, the appellant argues that the administrative

judge failed to consider medical documents showing that he suffered an electrical

shock when reassembling the fixture. PFR File, Tab 1 at 4. Lastly, the appellant

argues, again as he did below, that the agency’s action is the result of

whistleblowing and EEO activity reprisal. Id. at 5. The agency responds in

opposition. PFR File, Tab 3.

¶5 We find that the administrative judge was correct in holding that the

“affidavit” which the appellant submitted in response to the affirmative defense

order was not sworn. See IAF, Tab 9 at 6-15; ID at 11. However, the appellant

submitted another affidavit at the close of the record to which he swore before a

notary. IAF, Tab 18 at 12-23. The administrative judge did not address this

affidavit in the initial decision. Nevertheless, because the appellant did not

request a hearing and there are no issues before us regarding the administrative

judge’s credibility findings, we consider it now on review. For the following

reasons, we find that the appellant’s affidavit does not demonstrate that the

administrative judge erred in sustaining the agency’s charges.

¶6 In the appellant’s sworn May 2014 affidavit, he offers a fairly detailed

explanation of how he could have performed the periodic maintenance tasks at the

Victoria airport without actually being present at the facility and why he therefore

did not provide any false information or make any false statements about his

performance of those tasks. IAF, Tab 18 at 13-19. Importantly, the appellant

essentially conceded therein that he did not go to Victoria as his supervisor

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instructed, stating that “I never stated to anyone that I was physically present in

flesh and blood at this particular facility in Victoria.” Id. at 19. The appellant

also conceded in his April 2014 response to the affirmative defense order that he

did not follow his supervisor’s instructions to continue to Victoria and that he

misled the agency about the maintenance he performed. IAF, Tab 9 at 8.

Specifically, the appellant admitted that on the morning in question he “attempted

to complete my assigned maintenance and at the same time comply with my

supervisor’s assignment of mandatory training.” Id. He also stated that he

“forgot about the training class and in an attempt to make amends, made some

bad decisions and may have revealed some misunderstanding of the maintenance

handbook but there was never intent to falsify records or mislead the agency.” Id.

When we compare the appellant’s April and May 2014 assertions with his

contemporaneous December 11, 2012 statement that he could not recall whether

he actually went to Victoria and exactly what maintenance he performed there on

November 15, 2012, IAF, Tab 5, Subtab 4l at 35-38, as well as with his March 6,

2013 statement that he indeed did go to Victoria that day, and that he “completed

the maintenance and logged it into the computer[,]” id. at 64-65, it is clear that

the appellant has made a series of inconsistent statements.

¶7 The chronology of events, especially considering the appellant’s initial

inability to recall and his subsequently shifting explanations of his actions,

provide circumstantial but clearly preponderant evidence of his intent to mislead

the agency for his own personal gain. See, e.g., Boo v. Department of Homeland

Security, 122 M.S.P.R. 100, ¶¶ 10-13 (2014) (considering the entirety of the

circumstances, including the appellant’s otherwise plausible explanation of the

events, the intent to deceive may be inferred from circumstantial evidence

indicating an effort to hide or obscure facts in order to prevent the agency fro m

taking disciplinary action).

¶8 The appellant also claims on review that the administrative judge should

have considered his medical evidence on whether he followed his supervisor’s

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instructions, referenced in the second specification of the third charge, to repair

the light fixture on October 30, 2013. PFR File, Tab 1 at 4. He argued below

that he attempted to comply with his supervisor’s instructions to repair the light

fixture on October 31, 2013, but that he was injured in the process. IAF, Tab 18

at 20. He provided documentation indicating that he was treated for electrical

shock on October 31, 2013. IAF, Tab 19 at 18-22. The record also contains the

agency’s report on the electrical shock, which states that, because the circuit

breaker was turned off at the time, the maximum shock the appellant could have

received was 11.2 volts from the backup battery pack. Id. at 31. Nevertheless,

the specification indicates that the appellant was instructed to repair the light

fixture on October 30, not October 31. IAF, Tab 5, Subtab 4d at 4. In an

affidavit, the appellant’s supervisor similarly indicated that he asked the appellant

to repair the light fixture on October 30, but the appellant refused to do so. IAF,

Tab 16 at 20. Consistent with this information, the supervisor wrote in an

October 30, 2013 Memorandum that he specifically told the appellant early that

afternoon that he was to “re-assemble the emergency light fixture . . . before he

worked on anything else” and the appellant did not do so. IAF, Tab 5, Subtab 4h.

¶9 Although the administrative judge does not mention the medical evidence,

that does not mean that he failed to consider it. See Marques v. Department of

Health & Human Services, 22 M.S.P.R. 129, 132 (1984) (the administrative

judge’s failure to mention all of the evidence of record does not mean that he did

not consider it in reaching his decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)

(Table). Because the appellant’s medical evidence indicates that his electrical

shock occurred on October 31, it does not address his failure to follow his

supervisor’s instructions to repair the light fixture on October 30. IAF, Tab 19 at

18-22. We therefore agree with the administrative judge that the weight of the

evidence indicates that the appellant did not reassemble the light fixture as

instructed by his supervisor. ID at 11.

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¶10 Regarding his affirmative defenses, the appellant argues on review, as he

did below, that his removal was effected in reprisal for his whistleblowing and

EEO activities. PFR File, Tab 1 at 5; IAF, Tab 9. He does not challenge the

administrative judge’s adjudication of his discrimination claim, see ID at 12-13,

and we agree with the administrative judge’s disposition of that claim. In

rejecting the appellant’s claims of reprisal, the administrative judge found that the

record did not contain any evidence that the appellant engaged in protected EEO

activity, and we also agree with the administrative judge’s finding that the

appellant failed to establish his claim of reprisal for protected EEO activity. ID

at 12-13.

¶11 Regarding the appellant’s whistleblowing claims, the administrative judge

found that the appellant made protected disclosures in March 2011 and July 2012.

ID at 16-17. The administrative judge also found that the appellant failed to

establish that the disclosure set forth in his August 2012 complaint to the Office

of Special Counsel (OSC) was protected. ID at 16-17. The administrative judge

based this finding on the fact that the appellant’s August 2012 OSC complaint

was unsworn and failed to provide any basis for his claim that another employee

had illegally removed a generator from federal property. ID at 16-17. Although

the appellant’s May 2, 2014 affidavit is sworn, he still failed to explain the basis

for this claim. IAF, Tab 18 at 22. Similarly, in his petition for review, the

appellant fails to provide a basis for his belief that any wrongdoing occurred.

PFR File, Tab 1 at 5. Thus, we agree with the administrative judge’s

determination that the appellant failed to establish that his August 2012

disclosure was a protected one. Moreover, the appellant’s uncorroborated

assertion that his supervisor was angry that outsiders had heard about the alleged

removal of the generator and that he expressed his view that such a problem

should be handled in-house is insufficient to suggest that the agency perceived

him as a whistleblower. Cf. Reed v. Department of Veterans Affairs,

122 M.S.P.R. 165, ¶¶ 26-27 (2015) (an individual who is perceived as a

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whistleblower is still entitled to whistleblower protections, even in the absence of

any protected disclosures).

¶12 The administrative judge further found that the appellant failed to show by

preponderant evidence that his disclosures were a contributing factor in his

removal. ID at 13-17. However, by virtue of the proximity in time between the

appellant’s July 2012 protected disclosure and the beginning of the agency’s

investigation of him in January 2013, and because the administrative judge found

that pertinent agency officials were aware of the appellant’s disclosures, ID at 16,

we find that the appellant established that his July 2012 disclosure was a

contributing factor in the personnel action at issue via the knowledge/timing test,

see, e.g., Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 13 (6

months is well within the range of time between a disclosure and a personnel

action to satisfy the knowledge/timing test for a contributing factor), aff’d, 353 F.

App’x 435 (Fed. Cir. 2009).

¶13 Nevertheless, for the reasons described below, we agree with the

administrative judge and find herein that the agency established by clear and

convincing evidence that it would have removed the appellant in the absence of

his protected disclosures. In determining whether the agency has established that

it would have taken such an action in the absence of the appellant’s

whistleblowing activity, the Board will consider the following factors: (1) the

strength of the agency’s evidence in support of its action; (2) the existence and

strength of any motive to retaliate on the part of the agency officials who were

involved in the decision; and (3) any evidence that the agency takes similar

actions against employees who are not whistleblowers but who are otherwise

similarly situated. See Carr v. Social Security Administration, 185 F.3d 1318,

1323 (Fed. Cir. 1999). Moreover, evidence only clearly and convincingly

supports such a conclusion in the aggregate, considering all the evidence in the

record, even that which fairly detracts from that conclusion. Whitmore v.

Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).

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¶14 The disclosure which the administrative judge found was protected and that

we, as set forth above, find could have been a contributing factor to the personnel

action at issue, involved another employee’s alleged failure to certify corrective

maintenance that he reportedly performed on an approach lighting system at

Hobby Airport before returning it to service. See IAF, Tab 9 at 19-20. The

appellant wrote in his July 2012 OSC complaint that he discovered the failure

while performing Post Accident Verification of the lighting system following a

March 4, 2011 aircraft accident. Id. at 19.

¶15 Regarding the first Carr factor, we agree with the administrative judge that

the agency’s evidence in support of its action is both detailed and overwhelming.

ID at 18. As remarked above, the appellant’s initial inability to explain the

events of November 15, 2012, and his subsequently shifting explanations of his

actions that day, establishes his intent to mislead the agency about those actions

in order to avoid disciplinary action. We also agree that the weight of the record

indicates that the agency officials involved in the personnel action at issue had

little motive to retaliate against the appellant because the wrongdoing he alleged

did not implicate any of them. ID at 18. Nevertheless, an agency official’s lack

of direct involvement in the matter disclosed is insufficient to remove the

possibility of a retaliatory motive or influence in the personnel action at issue.

See Whitmore, 680 F.3d at 1370-72. However, the appellant’s uncorroborated

assertions are also insufficient to establish any motive to retaliate on behalf the

agency officials involved. Cf. Fellhoelter v. Department of Agriculture, 568 F.3d

965, 973-74 (Fed. Cir. 2009) (unsubstantiated claims of misconduct are not

probative as to the existence of retaliatory motive). Moreover, in light of the

multiple instances of falsification sustained in this matter, the appellant’s

unsubstantiated allegations of whistleblowing reprisal, even if sworn, see IAF,

Tab 18 at 20-23, carry little evidentiary weight, see ID at 18. On the third Carr

factor, we note that, although the record does not address the extent to which the

agency has taken similar actions against otherwise similarly-situated employees

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who are not whistleblowers, “the absence of any evidence relating to Carr factor

three can effectively remove that factor from the analysis.” Whitmore, 680 F.3d

at 1374.

¶16 Lastly, although the appellant does not specifically challenge them on

review, we agree with the administrative judge’s analysis and his findings that the

penalty of removal is reasonable in light of the charges sustained in this matter

and that the agency’s action promotes the efficiency of the service. ID at 18-21.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the

Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request further review of this final decision. There are several options for further

review set forth in the paragraphs below. You may choose only one of these

options, and once you elect to pursue one of the avenues of review set forth

below, you may be precluded from pursuing any other avenue of review.

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:

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Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

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. § 2000e-5(f) and

29 U.S.C. § 794a.

Other Claims: Judicial Review

If you do not want to request review of this final decision concerning your

discrimination claims, but you do want to request review of the Board's decision

without regard to your discrimination claims, you may request review of this final

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decision on the other issues in your appeal 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).

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices described in 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 by 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.

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.

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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

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.