The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AARON DARNELL GRANT, DOCKET NUMBER
Appellant, DC-0752-14-0237-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: May 27, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Aaron Darnell Grant, Washington, D.C., pro se.
Byron D. Smalley, Esquire, and Robert M. Mirkov, Esquire, Washington,
D.C., 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
sustained the appellant’s 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. We AFFIRM the initial decision, as MODIFIED by this Final
Order. We MODIFY the initial decision to clarify the administrative judge’s
analysis that the appellant failed to prove his due process claims, including his
argument that, in imposing the removal penalty, the deciding official considered
an aggravating Douglas factor—that the appellant’s lack of candor was
intentional—which was not specifically alleged in the proposal notice. The initial
decision, as modified by the Final Order, is the Board’s final decision in this
matter. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant was a Criminal Investigator with the Internal Revenue
Service. By notice dated December 7, 2012, the agency proposed the appellant’s
removal on three charges: (1) being less than candid in a matter of official
business (two specifications); (2) failing to follow established procedures (four
specifications); and (3) failing to cooperate in an official investigation (one
specification). Initial Appeal File (IAF), Tab 12 at 52-55. After conducting a
hearing, the administrative judge found that the agency proved all of its charges
and specifications by preponderant evidence. IAF, Tab 80, Initial Decision (ID)
at 14-28. The administrative judge then considered the appellant’s affirmative
defenses, finding that the appellant failed to establish harmful procedural error,
3
denial of due process, retaliation for protected equal employment opportunity
(EEO) and/or MSPB activity, or discrimination on the bases of race and/or
gender. ID at 28-45. Finally, the administrative judge found nexus between the
appellant’s misconduct and the efficiency of the service and that the removal
penalty was within the bounds of reasonableness. ID at 45-51.
¶3 In a timely filed petition for review, the appellant contests virtually all of
the administrative judge’s findings. Petition for Review (PFR) File, Tab 1. 2 The
agency has filed a timely response, to which the appellant has replied. PFR File,
Tabs 13, 19. 3
ANALYSIS
¶4 The Board will grant a petition for review when it is shown that the initial
decision contains erroneous findings of material fact. 5 C.F.R. § 1201.115(a). To
be material, an alleged factual error must be of sufficient weight to warrant an
outcome different from that of the initial decision, and the petitioner must explain
why the challenged factual determination is incorrect and identify specific
evidence in the record that demonstrates the error. Id. The Board will not disturb
an administrative judge’s findings when he considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions of credibility. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997); Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987). The
Board must give deference to an administrative judge’s credibility determinations
2
Among other matters, the appellant challenges the administrative judge’s
determinations as to retaliation for protected EEO activity and/or for filing an MSPB
appeal, discrimination on the bases of race and/or gender, and the reasonableness of the
penalty. PFR File, Tab 1 at 41-50. We affirm the findings on these issues in the initial
decision for the reasons stated therein.
3
Following the close of the record, the appellant filed a number of motions for leave to
file new evidence or to brief additional issues. See PFR File, Tabs 7, 14, 21, 25, 27, 29,
34, and 36. Because the appellant has not established that any of this evidence or
argument is new and material, or that good cause exists for any his motions, they are all
denied.
4
when they are based, explicitly or implicitly, on the observation of the demeanor
of witnesses testifying at a hearing and can overturn such determinations only
when it has “sufficiently sound” reasons for doing so. Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
¶5 As discussed below, our review shows that the administrative judge
complied with the requirements of Crosby and Broughton in making detailed
findings of fact and credibility determinations. In addition, the administrative
judge explicitly relied on the demeanor of witnesses in assessing credibility. See
ID at 15, 18 & n.11. We find no sound basis for overturning any of the
administrative judge’s credibility determinations and findings of fact.
The administrative judge correctly found that the agency proved all of its charges
and specifications.
The administrative judge correctly found that the agency proved both
specifications of its charge that the appellant was less than candid in a matter
of official business.
¶6 Lack of candor and falsification are different, although related, forms of
misconduct, and the latter is not a necessary element of the former; thus, lack of
candor is a more flexible charge that need not require proof of intent to deceive.
Ludlum v. Department of Justice, 278 F.3d 1280, 1283-84 (Fed. Cir. 2002). But,
intent aside, lack of candor still “necessarily involves a degree of deception.” Id.
at 1284. It may involve lying under oath or failing to reply fully and truthfully,
such as failing to disclose something that, in the circumstances, should have been
disclosed in order to make the given statement accurate and complete. Id.
¶7 Both of the specifications under this charge relate to the appellant’s
responses under oath during questioning by agency investigators on April 30,
2010. The first specification related to the appellant’s negative response on that
date to the question of whether he had been involved in a car accident in his
government-owned vehicle (GOV). IAF, Tab 12 at 52, 218. The agency alleged
that this response was less than candid in that, on May 3, 2010, he told
investigators under oath that he had been involved in an accident in his GOV. Id.
5
at 52, 223. The second specification related to the appellant’s denial while under
oath on April 30 that he had lost his credentials in connection with the car
accident involved in the first specification. The agency alleged that this response
was less than candid because on May 3, he stated in his affidavit and under oath
to agency investigators that he had briefly lost his credentials while addressing
the car accident. IAF, Tab 12 at 52, 218, 223. After considering the evidence,
the administrative judge concluded that the agency proved both specifications by
preponderant evidence. ID at 14-20.
¶8 On review, the appellant asserts that the agency failed to prove either
specification. Before addressing the specifics of his contentions in this regard,
we note that the appellant effectively conceded on the face of his May 3 affidavit
that he had been less than candid on April 30: “I would like to recant some of my
answers that I provided to TIGTA 4 Special Agents . . . .” IAF, Tab 12 at 227.
The appellant would have had no need on May 3 to “recant” answers provided on
April 30 if he had been candid on April 30.
¶9 Regarding the first specification, the appellant alleges that the agency failed
to establish that he was involved in a car accident in his GOV, repeatedly
describing what happened as a “near miss” rather than an accident. PFR File, Tab
1 at 23-28. This contention contradicts the affidavit the appellant provided
agency investigators on May 3: “I got into a fender-bender on the on-ramp from
Branch Avenue to Suitland Parkway going towards DC . . . . I was texting on my
phone and lost concentration on the road and rear-ended an individual.” IAF, Tab
12 at 228. That statement is unambiguous; the appellant admitted that his vehicle
“rear-ended” the vehicle in front of him, meaning that his vehicle made contact
with the other vehicle. Regardless of whether there was observable damage to
either vehicle in this collision, the appellant admitted that he was in an accident,
4
TIGTA is an abbreviation for the Treasury Inspector General for Tax Admin istration.
6
and his later denial of being in an accident on April 30 lacked candor, as do his
assertions about a “near miss” in his petition for review.
¶10 The appellant asserts on review that the agency failed to establish lack of
candor when he denied on April 30 that he ever lost his credentials because the
agency failed to establish that he ever lost his credentials. PFR File, Tab 1 at
31-32. In his May 3 affidavit, the appellant admitted that he called a coworker
from his cell phone and told her that he had lost his credentials. IAF, Tab 12 at
228. The coworker corroborated that the appellant called her and asked her to
look for his credentials. Id. at 211. A disinterested third party—a police
officer—who was with the coworker at the time of the call overheard her tell the
appellant that she was not going to help him look for his credentials and that he
needed to report that he had been in an accident. Id. at 221. The agency
established that the appellant was less than candid when he denied on April 30
that he had lost his credentials.
The administrative judge correctly found that the agency proved all of its
specifications that the appellant failed to follow established procedures.
¶11 The agency charged that the appellant failed to follow established
procedures when he: (1) failed to report that he was involved in a car accident
while driving his GOV; (2) texted while driving a GOV; (3) drove his GOV and
was wearing his Service-issued firearm while under the influence of alcohol on
January 24, 2009; and (4) drove his GOV after consuming alcohol on March 31,
2010. IAF, Tab 12 at 52-53. On review, the appellant admits that he was guilty
of the third specification but contends that the administrative judge erred in
finding that the agency proved the other three specifications. PFR File, Tab 1 at
26-35.
¶12 The appellant claims he was not guilty of the first specification—that he
failed to follow established procedures when he did not report his auto accident of
January 24, 2009—based on his assertion that the agency failed to establish that
he was involved in an automobile accident. PFR File, Tab 1 at 32-37. That
7
contention is without merit for the reasons discussed above. There was no
dispute that agency policy required the prompt reporting of automobile accidents.
See IAF, Tab 12 at 97. It was also undisputed that the appellant did not promptly
report the automobile accident in which he was involved on January 24, 2009.
¶13 The appellant claims that he is not guilty of the second
specification--violating agency policy when he texted while driving a GOV,
resulting in an accident—because the agency did not have a specific agency
policy prohibiting texting while driving at the time of the incident in January
2009. PFR File, Tab 1 at 34-36. The agency did not, however, rely on a specific
policy prohibiting texting while driving; it relied on a policy that provided:
“Each employee to whom a vehicle is issued or assigned is responsible for
accident prevention and safe driving of government-owned . . . vehicles.” IAF,
Tab 12 at 53, 96. This provision cited inattentiveness and using a cell phone as
examples of violating the policy. Id. at 96. In his affidavit of May 3, the
appellant admitted that he had violated this policy: “I got into a fender-
bender . . . . I was texting on my phone and lost concentration on the road and
rear-ended an individual.” Id. at 228.
¶14 The appellant contends that the agency failed to prove the fourth
specification—that he violated agency policy when he drove his GOV after
consuming alcohol on March 31, 2010—because the agency failed to introduce
objective evidence to prove that he was intoxicated under some legal standard
when he drove home that night. PFR File, Tab 1 at 37-38. The agency policy did
not require such proof; it prohibited agents such as the appellant from consuming
intoxicants at any time during the workday, including mealtimes, “when the agent
intends to return to duty that day. This includes … any time while operating a
GOV or carrying a firearm.” IAF, Tab 12 at 114. The appellant admitted that he
drank three or four alcoholic drinks on the evening of March 31, 2010. See IAF,
Tab 12 at 44, 229. At the hearing, the appellant initially denied that he was still
under the influence of alcohol when he drove his GOV home later that night.
8
Hearing Transcript (HT) (March 19, 2014) at 196-200. 5 He was impeached by
evidence of his earlier deposition, wherein he stated that he was “drunk” in the
workplace and continued to be “under the influence” when he drove his GOV
home at midnight. Id.; ID at 25; IAF, Tab 31 at 444; HT (March 19, 2014) at
200.
The agency proved its charge of failing to cooperate in an official
investigation.
¶15 The basis for this charge was the appellant’s failure to provide contact
information for the individual whom he rear-ended on January 24, 2009. On
May 3, 2010, while under oath, the appellant told the TIGTA investigator that he
no longer had the contact information. IAF, Tab 12 at 53. On May 14, 2010, the
TIGTA agent telephoned the appellant to see if he had located the requested
contact information. The appellant informed the agent that he would allow
TIGTA to see the information but would not allow TIGTA to keep it and then
ended the telephone call. Id. On May 17, 2010, the appellant telephoned the
TIGTA agent and asked how providing the requested contact information would
help the appellant’s case, and the TIGTA agent advised him that the information
was needed as part of the investigation. Id. The appellant never provided TIGTA
with the requested contact information. Id. The appellant contends on review
that he was not required to provide the other motorist’s contact information to the
agency investigators because such a requirement would have violated his Fifth
Amendment privilege against self-incrimination. PFR File, Tab 1 at 38-41.
5
Generally, the oral recording made by a court reporter is the official transcript of a
hearing. See 5 C.F.R. § 1201.53(a). A written transcript will be accepted as the official
hearing record when prepared by the court reporter. 5 C.F.R. § 1201.53(b). Here, the
agency obtained the oral recordin g of the hearing and retained a second company to
prepare a written transcript. PFR File, Tab 24. Although the recording prepared by the
court reporter retained by the Board remains the official hearing record, we cite the
written transcript prepared by the second company for convenience. We have verified
the accuracy of the portions of the written transcript cited by listen ing to the relevant
portions of the oral recording.
9
¶16 We note that the appellant has not disputed the administrative judge’s
findings that he possessed the requested information and failed to provide it to
agency investigators. Accordingly, the administrative judge had a proper basis
for finding that the agency proved the factual allegations supporting the charge.
The only question is whether the appellant was obligated to comply with the
agency’s request.
¶17 As the agency points out in its response to the appellant’s petition for
review, PFR File, Tab 13 at 30, an employee has a Fifth Amendment privilege not
to answer questions posed during an agency administrative investigation only if
he reasonably believes that his statements may be used against him in a criminal
trial. See Weston v. Department of Housing & Urban Development, 724 F.2d 943,
947-48 (Fed. Cir. 1983); Ashford v. Department of Justice, 6 M.S.P.R. 458, 465
(1981). According to his own account, the appellant did not invoke his privilege
against self-incrimination until May 24, 2010, subsequent to the dates cited in the
agency’s charge. IAF, Tab 12 at 44. In addition, the appellant has cited no
reasons to support a conclusion that he reasonably believed that he might be
subject to criminal prosecution if he had complied with the request for the other
motorist’s contact information. We therefore find that the appellant was
obligated to comply with the investigators’ request for information and his failure
to do so constituted failing to cooperate in an official investigation.
The appellant has failed to establish that he was denied due process of law.
¶18 A tenured public employee has a constitutional right to minimum due
process of law under the Fifth Amendment, i.e., prior notice and an opportunity to
respond. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985).
When an agency intends to rely on aggravating factors as the basis for the
imposition of a penalty, such factors should be included in the advance notice of
adverse action so that the employee will have a fair opportunity to respond to
those factors before the agency’s deciding official. Lopes v. Department of the
Navy, 116 M.S.P.R. 470, ¶ 5 (2011); see Ward v. U.S. Postal Service, 634 F.3d
10
1274, 1280 (Fed. Cir. 2011). Not every failure to list an aggravating factor in the
proposal notice rises to the level of a due process violation; a due process
violation occurs only when “new and material information” is considered that is
“so substantial and so likely to cause prejudice that no employee can fairly be
required to be subjected to a deprivation of property under such circumstances.”
Bennett v. Department of Justice, 119 M.S.P.R. 685, ¶ 7 (2013) (quoting Ward,
634 F.3d at 1279).
The agency did not violate the appellant’s due process rights by failing to
advise him how each of the Douglas factors would be applied to the offenses.
¶19 On review, the appellant points out that the proposal notice did not describe
how each of the Douglas factors 6 applied to the charged misconduct and contends
that this failure denied him due process of law. PFR File, Tab 1 at 7-9. The
appellant lays particular emphasis on the fact that the proposal notice did not
specifically discuss the fourth or ninth Douglas factors, i.e., his work record and
potential for rehabilitation. PFR File, Tab 1 at 5-7, 16. 7
¶20 The proposal notice did explicitly discuss the first and second Douglas
factors, the nature and seriousness of the offense and its relation to the
appellant’s duties, position, and responsibilities, and the appellant’s job level and
type of employment. IAF, Tab 12 at 54. The Board often has stated that the first
factor is the most important in assessing the reasonableness of the penalty. E.g.,
Brough v. Department of Commerce, 119 M.S.P.R. 118, ¶ 11 (2013); Batts v.
Department of the Interior, 102 M.S.P.R. 27, ¶ 11 (2006); Williams v.
Government Printing Office, 7 M.S.P.R. 183, 185 (1981). In addition to the first
two Douglas factors, the agency’s proposal and decision notices cited several
6
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
listed 12 non-exclusive factors to be considered in assessing the reasonableness of an
agency-imposed penalty.
7
The appellant’s contentions regarding the fourth Douglas factor are discussed below,
¶¶ 24-25.
11
other Douglas factors as “aggravating” in nature: (5) Effect on Future
Performance; (6) Consistency with Other Penalties; (8) Clarity of Notice;
(9) Potential for Rehabilitation; and (11) Adequacy of Alternative Sanctions.
IAF, Tab 12 at 39, 5, 66-67; see Douglas, 5 M.S.P.R. at 305-06. 8
¶21 Although the proposal notice did not expressly discuss how each of the
“aggravating” Douglas factors applied to the appellant’s situation, it did provide
him a Guide to Penalty Determinations, which described in general terms how
each of the Douglas factors is used in determining a reasonable penalty. See id.
at 56, 65-68. The Guide states that factor 5—Effect on Future Performance—
includes the effect of the offense upon the employer’s confidence in the
employee’s ability to perform assigned duties and loss of trust in the employee’s
ability to perform assigned duties in the future. Id. at 66. Such loss of
confidence was specifically raised in the proposal notice (“Your failure to meet
these standards seriously impairs the Service’s and public’s ability to rely on your
veracity, ability to use sound judgment and follow established procedures and
directives”). Id. at 54. For factor 9—Potential for Rehabilitation—the Guide
states that an employee who admits misconduct and shows remorse displays
potential for rehabilitation, while an employee who rationalizes his wrongdoing,
fails to take responsibility, or does not show an understanding of why his
behavior was wrong is not a good candidate for rehabilitation. Id. at 67. It also
states that lying during an investigation may be viewed as a lack of potential for
rehabilitation. Id. The application of this Douglas factor to the charged
misconduct was self-evident. Although the proposal notice did not specifically
discuss Douglas factor 8, Clarity of Notice, the appellant was notified that the
agency considered this an aggravating factor, and he made no claim that he was
8
The agency’s listing of factors omits Douglas factor 7, which is the consistency of the
penalty with any applicable agency table of penalties. See IAF, Tab 12 at 66; see also
Douglas, 5 M.S.P.R. at 305. Accordingly, the factors numbered as 8-12 in Douglas are
listed in the agency’s document as factors 7-11. IAF, Tab 12 at 66-67. We use the
agency’s numbering of factors.
12
unaware of the need to report auto accidents, to refrain from driving his GOV
after consuming alcohol, or to respond fully and truthfully during an agency
investigation.
¶22 In sum, although the agency’s proposing official could have discussed with
more specificity why he considered Douglas factors 5, 6, 9 8, 9, and 11 to be
factors aggravating the penalty to be imposed, and the deciding official could
have explained with more specificity why he considered them to be aggravating
factors, the appellant was on fair notice of those factors and had a reasonable
opportunity to respond to them. That he chose to ignore them in his response to
the proposed removal, see IAF, Tab 12 at 42-45, is his own responsibility. We
conclude that the agency’s failure to discuss these aggravating factors with more
specificity in its proposal notice was not “so substantial and so likely to cause
prejudice that no employee can fairly be required to be subjected to a deprivation
of property under such circumstances.” Ward, 634 F.3d at 1279.
The agency did not violate the appellant’s due process rights by failing to
give him notice of workplace performance as an aggravating factor.
¶23 The agency’s December 7, 2012 proposal notice did not state that the
agency considered Douglas factor 4—Work Record—as an aggravating factor.
See IAF, Tab 12 at 54. On December 21, the proposing official provided the
appellant additional materials that the agency stated would be considered and
relied on in connection with the proposed removal. Id. at 58. These additional
materials concerned the appellant’s alleged failure to comply with his
supervisor’s directives to input his time in the agency’s electronic system. Id. at
9
Although listed in both the proposal and decision notices as an aggravating factor, the
consistency of the penalty with that imposed on other employees for similar offenses
was not specifically discussed in either. See IAF, Tab 12 at 39, 54. The deciding
official testified that he considered th is an aggravating factor in that no other employees
had been disciplined for all of the misconduct as had the appellant. HT (March 18,
2014) at 251-52. We see no basis for finding that the deciding official’s lim ited
consideration of this factor invo lved “new and material information” that could
constitute a due process violation.
13
59-61. At the hearing, the deciding official testified that this evidence “could
apply” under Douglas factor 4 in that it contained some information about the
appellant’s ability to get along with coworkers and some unprofessional conduct
with coworkers but “that didn’t really aggravate the penalty in my opinion.” HT
(March 18, 2014) at 249-50. The administrative judge found that the deciding
official properly considered this information under Douglas factor 4. ID at
50-51. The appellant contends that he was denied due process because the
deciding official considered a new aggravating factor not listed in the proposal
notice. PFR File, Tab 1 at 5-7.
¶24 This situation presents the converse of the Douglas factors described above,
in that the agency listed those factors in the proposal notice but did not describe
how they applied with particularity. By contrast, in this allegation of a due
process violation, the agency supplied the appellant with the additional material it
would be considering but did not identify the Douglas factor(s) to which the new
material related. This allegation is also unlike the due process allegations
described above in that the appellant did address the reasons why he had not
inputted his time into the agency’s electronic system. IAF, Tab 12 at 45. That
the appellant was provided with the material in question, was advised that it
would be considered in connection with the proposed removal, and not only had
the opportunity to respond to it but in fact did so precludes a finding that he was
denied due process of law in violation of the Fifth Amendment. The agency’s
failure to describe with particularity how it was viewing the additional material
was not “so substantial and so likely to cause prejudice that no employee can
fairly be required to be subjected to a deprivation of property under such
circumstances.” Ward, 634 F.3d at 1279.
The agency did not deny the appellant due process of law by considering
statements by coworkers.
¶25 The agency’s notice of proposed removal included a list of documents
relied upon, including a Report of Investigation (ROI) issued by agency
14
investigators. IAF, Tab 12 at 57, 199-257. This included memoranda
documenting interviews with agency employees ND, MJ, and TR. Id. at 206-07,
209-11, 221-22. In his petition for review, the appellant observes that the
deciding official testified that he considered statements by two of these
coworkers, and argues that the deciding official’s consideration of this “ex parte”
information denied him due process. PFR File, Tab 1 at 12-15. The
administrative judge adequately addressed this allegation when he observed that
the investigative memoranda in question were contained in the ROI “and the
agency expressly notified the appellant that the ROI was part of the ‘Material
Relied On’ for its proposal . . . . Thus, the appellant’s suggestion that he was
unaware that the agency could be relying on these documents is contradicted by
the plain language in the proposal notice.” ID at 37.
The agency did not violate the appellant’s due process rights by failing to
give him notice that he was being charged with intentional falsification.
¶26 The essence of the appellant’s complaint in this regard is that, by charging
him with lack of candor, the agency did not put him on notice that he was being
charged with intentional falsification, but both the deciding official and the
administrative judge nevertheless determined that his lack of candor was
intentional. PFR File, Tab 1 at 12. The proposal notice stated that a special
agent who is deemed Giglio-impaired 10 impeaches that agent’s credibility as a
witness, severely hampering the agency’s mission, and that his misconduct
“seriously impairs the Service’s and public’s ability to rely on your veracity.”
IAF, Tab 12 at 54. This gave the appellant fair notice that all aspects of his
10
Under Giglio v. United States, 405 U.S. 150 (1972), investigative agencies must, as
early as possible in a case, turn over any potential impeachment evidence concerning
the agents involved in the case to prosecutors, who then exercise their d iscretion
regarding whether the impeachment evidence must be turned over to the defense. Solis
v. Department of Justice, 117 M.S.P.R. 458, ¶ 4 n.1 (2012). A “Giglio-impaired” agent
is one against whom there is potential impeachment evidence that would render the
agent’s testimony of marginal value in a case. I d.
15
veracity and credibility were at issue, including whether his lack of candor had
been intentional.
¶27 As discussed above, a lack of candor charge “necessarily involves a degree
of deception,” and may involve lying under oath as well as a failure to reply fully
and truthfully. Ludlum, 278 F.3d at 1284-85. Although a charge of lack of
candor does not necessarily require proof of the specific intent required for a
falsification charge, it does necessarily entail an allegation that the misconduct at
issue was deceptive, which by its very nature is intentional. 11 Thus, the agency
was not required to notify the appellant that it intended to “aggravate” the penalty
on the basis that his lack of candor was intentional.
The deciding official did not deny the appellant due process of law by
determining that he was Giglio-impaired.
¶28 The agency’s proposal notice specifically indicated that the proposing
official believed the appellant’s misconduct would render him Giglio-impaired.
IAF, Tab 12 at 54. The appellant did not address this issue in his response to the
proposed removal. Id. at 42-45. In issuing his decision to remove the appellant
from employment, the deciding official concluded that the appellant was
Giglio-impaired. Id. at 38. On review, the appellant argues that it was improper
for the deciding official to make this determination based on his own experience,
instead of a determination being made by the United States Attorneys’ Office, and
that this somehow denied him due process of law. PFR File, Tab 1 at 15-16.
¶29 A determination by a deciding official that an employee is Giglio-impaired,
without notifying the employee in the proposal notice that this would be
11
In Payton v. Department of Veterans Affairs, MSPB Docket No. AT-0752-14-0055-I-
1, Final Order (Jan. 29, 2015), the Board determined in a nonprecedential decision that
because neither of the sustained charges—which included a charge of lack of candor—
required proof of intent, the deciding official erred in considering the intentional nature
of the appellant’s misconduct without advanced notice. We decline to follow Payton to
the extent that it holds that a decidin g official vio lates due process by considering,
without notice, the inherently deceptive nature of the conduct underlying any lack of
candor charge.
16
considered, would present significant due process problems. See Bennett,
119 M.S.P.R. 685, ¶¶ 9-11; Solis, 117 M.S.P.R. 458, ¶¶ 9-10. Here, the agency
did give the appellant notice and an opportunity to respond to this issue; he
simply failed to avail himself of that opportunity.
The appellant has failed to establish harmful procedural error.
¶30 The Board may not sustain an agency decision if it results from harmful
error in the application of the agency’s procedures. 5 U.S.C. § 7701(c)(2)(A).
Harmful error cannot be presumed; an agency error is harmful only where the
record shows that the procedural error was likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681,
685 (1991). The appellant makes two allegations of harmful procedural error.
¶31 The appellant asserts that agency procedures require that proposing officials
consider employees’ written responses and that the proposing official committed
harmful error by failing to consider his written response. PFR File, Tab 1 at
17-19. The rule he says was violated is IRM 6.752.2.23. PFR File, Tab 1 at 17.
As the administrative judge properly observed, however, the rule in question
relates to the duties of an oral reply officer. IAF, Tab 40 at 78; ID at 32. This
rule has no application to this case because the appellant never requested an oral
reply.
¶32 The appellant asserts that the agency violated agency rules by twice denying
his request for the presence of counsel regarding his questioning on April 30,
2010. PFR File, Tab 1 at 19-22. He cites section 210.6.2 of the TIGTA
Operations Manual as being the source of his right to the presence of counsel.
PFR File, Tab 1 at 21. The first sentence of the section 210.6.2 reads as follows:
“The presence of counsel in non-criminal or non-prosecution type interviews is a
privilege and not a right.” IAF, Tab 41 at 37. The administrative judge correctly
observed that the appellant had not identified any authority to support a finding
17
that he was entitled to have an attorney present at the interview. ID at 29. Here,
the record reflects that the questioning was non-criminal and non-prosecutorial.
The appellant has not established a basis for suppressing his statements to
investigators on April 30, 2010.
¶33 The appellant argues that nothing he said during the April 30 interview
could be used against him because it was a custodial interview conducted without
protection of his Fifth Amendment privilege against self-incrimination. PFR File,
Tab 1 at 23-25.
¶34 The Employee Interview form that the appellant signed on April 30
informed him that, “[a]s an employee, you must answer the questions asked
during this interview and under oath when required; failure to answer may subject
you to dismissal from Federal employment or other disciplinary or adverse
action.” IAF, Tab 12 at 219. It further advised him that “[f]urnishing false
information may result in criminal prosecution.” Id. That the appellant was
required to answer questions, however, does not, however, mean he was subject
to a custodial interrogation. See Connett v. Department of the Navy, 31 M.S.P.R.
322, 327 (1986) (although the possibility of criminal action existed when the
agency required the appellant to complete a financial disclosure form, the agency
was not required to give Miranda notice because the appellant was not in
custodial interrogation), aff’d, 824 F.2d 978 (Fed. Cir. 1987) (Table). If the
appellant had refused to answer questions on the ground that his answers might
incriminate him and the agency had disciplined him for that refusal, we would be
addressing different legal issues. But since he chose to answer, he was obligated
to answer truthfully and with candor. As the administrative judge correctly
observed, having decided to answer questions, the appellant did not have a right
to lie. ID at 31 (citing Lachance v. Erickson, 522 U.S. 262, 268 (1998)).
18
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.
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
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
19
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.