The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAMARCUS STOCKTON, DOCKET NUMBER
Appellant, DA-0752-13-1025-I-3
v.
DEPARTMENT OF THE ARMY, DATE: October 9, 2015
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Michael D.J. Eisenberg, Esquire, Washington, D.C., for the appellant.
Craig Paulson, Esquire, Texarkana, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the regional office for further adjudication in accordance with this Order.
Specifically, we find that the administrative judge failed to address the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
appellant’s affirmative defense of retaliation for prior equal employment
opportunity (EEO) activity. We therefore remand the appeal for adjudication of
that affirmative defense and a new assessment of the agency’s penalty
determination, if necessary.
BACKGROUND
¶2 The appellant was employed as an Information Technology Specialist
(Network/Infosec). Stockton v. Department of the Army, MSPB Docket No. DA-
0752-13-1025-I-1, Initial Appeal File (I-1 IAF), Tab 3 at 8. The agency proposed
his removal based upon charges of: (1) providing the agency with an altered
email to support his assertion that he applied, but failed to receive consideration,
for a positon at the agency; and (2) lack of candor when he said that a computer
glitch was the source of the altered email. Id. at 55. The appellant replied both
orally and in writing to the proposal. Id. at 15-28. The agency sustained the
charges and removed the appellant from Federal service. Id. at 9-11.
¶3 The appellant alleged that he applied for a noncompetitive promotion but
that the agency denied that he applied for the position. See id. at 101. The
appellant stated that he inquired as to whether his name was included on the
referral list for the promotion and, upon hearing that the agency could not locate
his application, he submitted both what he claimed was an acknowledgment letter
indicating that he had applied for the position as well as a screen shot indicating
that the status for his application to the position was unavailable. See id. at 84,
101; Stockton v. Department of the Army, MSPB Docket No. DA-0752-13-1025-
I-3, Initial Appeal File (I-3 IAF), Tab 5 at 19-20. The appellant also filed an
EEO complaint in which he asserted that he was not selected for the promotion
because of discrimination based upon his race and age. 2 I-3 IAF, Tab 5 at 33-37.
The agency ordered an inquiry to determine whether the appellant submitted
altered or falsified documents in an attempt to obtain eligibility for consideration
2
The appellant subsequently withdrew his EEO complaint. I-3 IAF, Tab 5 at 26.
3
for the promotion. I-1 IAF, Tab 3 at 57-61. The appellant told the inquiry officer
and another agency employee that he failed to receive consideration for the
promotion because of a computer glitch. Id. at 58; I-3 IAF, Tab 5 at 65. After
conducting the inquiry, the inquiry officer concluded that preponderant evidence
established that the appellant submitted an altered acknowledgment letter in an
attempt to obtain eligibility for consideration for the promotion and that the
appellant’s assertion that a computer glitch had affected only his application
submission and acknowledgment letter was not credible. I-1 IAF, Tab 3 at 60.
The appellant’s removal followed. Id. at 9-11.
¶4 The appellant challenged the removal before the Board, asserting, inter alia,
that: (1) the agency should not have sustained the charges; (2) the agency failed
to prove a sufficient nexus between the alleged misconduct and his employment;
(3) the penalty was too severe and unreasonable given the mitigating
circumstances in the case; and (4) the agency committed a prohibited personnel
practice under 5 U.S.C. § 2302(b)(1) when it proposed his removal and issued a
removal decision in retaliation for his involvement in protected activity. I-1 IAF,
Tab 1. He requested a hearing. Id.
¶5 After holding the requested hearing, the administrative judge found that
(1) the appellant provided an altered email to support his assertion that he applied
for, but failed to receive consideration for, a promotion; (2) the appellant lacked
candor when he stated that a computer glitch was the source of the altered email;
(3) disciplinary action for the cited misconduct promoted the efficiency of the
service; and (4) the penalty of removal was within the tolerable bounds of
reasonableness. I-3 IAF, Tab 30, Initial Decision (ID) at 2-9. The appellant has
timely petitioned for review. Petition for Review (PFR) File, Tab 1. He asserts,
inter alia, that the administrative judge improperly sustained the lack of candor
charge because the agency failed to prove the element of deception necessary for
the charge. Id. at 5-7. He also asserts that the agency failed to prove that he had
knowledge that the document he submitted was altered. Id. at 7. In further
4
support of his assertion that the administrative judge erred in sustaining the
charges, the appellant challenges the thoroughness and competence of the
agency’s investigation. Id. at 6-7, 14. The appellant additionally asserts that the
administrative judge failed to address his affirmative defense of EEO retaliation.
Id. at 8-9. Finally, the appellant challenges the penalty determination. 3
Id. at 9-15. The agency has responded in opposition to the petition for review.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the charge that the appellant
provided an altered email to support his assertion that he applied for a promotion.
¶6 As noted above, the administrative judge found that the agency had shown
by preponderant evidence that the appellant submitted an altered email under the
guise of an authentic email in support of his contention that he had applied for a
promotion. ID at 5. On review, the appellant argues that the agency failed to
prove that he had knowledge that the document he submitted was altered. PFR
File, Tab 1 at 7. For the reasons discussed below, we agree with the
administrative judge that the agency proved the charge.
¶7 We find that the agency’s charge of providing an altered email is essentially
a charge of falsification. To establish a charge of falsification, the agency must
prove by preponderant evidence that the appellant: (1) supplied wrong
information; and (2) knowingly did so with the intention of (a) defrauding,
deceiving, or misleading the agency, and (b) defrauding the agency for his own
3
The appellant asserts that the agency failed to conduct a nationwide search for
comparators. PFR File, Tab 1 at 12-13. We find that this bare assertion is insufficient
to state a claim of disparate penalties. See Lewis v. Department of Veterans Affairs,
111 M.S.P.R. 388, ¶ 8 (2009) (holding that an agency’s obligation to justify different
treatment is triggered where an employee has raised an allegation of disparate penalties
in comparison to specified employees).
5
personal gain. 4 Parker v. Department of Veterans Affairs, 122 M.S.P.R. 353, ¶ 10
(2015) (citing Haebe v. Department of Justice, 288 F.3d 1288, 1305 (Fed. Cir.
2002)).
¶8 In sustaining the charge, the administrative judge relied, in part, on the
testimony of agency witnesses, which he determined was more credible than the
testimony of the appellant’s witnesses. ID at 5. Specifically, the administrative
judge credited the testimony of the Chief of Skills Development, who participated
in the inquiry that led to the appellant’s removal, that the appellant provided the
agency with an acknowledgement letter to support consideration for a promotion
and that, based upon review by the Office of Personnel Management (OPM) and
the agency, this letter was determined to have been altered. ID at 2-3, 5. The
administrative judge found that this testimony was credible because the Chief of
Skills Development testified in a direct and straightforward manner, was sure of
his facts, appeared truthful in his responses, and testified consistently on direct
and cross-examination. ID at 5. The administrative judge further credited the
testimony of an OPM Human Resources (HR) Specialist that the email that the
appellant submitted was not generated by OPM. ID at 4. The administrative
judge also found the OPM HR Specialist’s testimony to be persuasive because she
made an effort to understand questions, the testimony was consistent and direct,
and she explained in detail why she believed the email had been altered. ID at 6.
Similarly, the administrative judge found that an OPM supervisor persuasively
testified in a consistent, direct, and straightforward manner that a search of the
agency’s records during the relevant time period reflected that the appellant never
completed an application for the position in question. ID at 4, 6.
¶9 The administrative judge considered the testimony of the appellant’s
witnesses in support of his assertion that he had applied for the position and that
4
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
6
the email was authentic, but found that this testimony did not support the
appellant’s assertion. ID at 5-6. Specifically, the administrative judge found
that, although a former agency employee, D.C., had signed a statement that she
personally had confirmed receipt of the appellant’s application for the position,
D.C. testified at the hearing that another employee had actually obtained this
information for her. ID at 6. The administrative judge noted S.M., the other
employee identified by D.C., did not recall obtaining that information or D.C.
asking her to do so. Id. The administrative judge also noted that the supervisory
HR Specialist who supervised both D.C. and S.M. testified that neither she nor
any of her staff could access applications in the Southwest Region, where the
position in question was located. Id. The administrative judge found that this
testimony was credible because it was direct and straightforward. Id. He
therefore gave this testimony greater weight than that of D.C. Id.
¶10 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 on issues of credibility. See Broughton v. Department of
Health & Human Services, 33 M.S.P.R. 357, 359 (1987). More specifically, when
a hearing was held, the Board will defer to the credibility determinations of an
administrative judge when they are based, explicitly or implicitly, upon the
observation of the demeanor of witnesses testifying at a hearing, because the
administrative judge is in the best position to observe the demeanor of the
witnesses and determine which witnesses were testifying credibly. Haebe, 288
F.3d at 1300-01. Here, we defer to the administrative judge’s credibility
determinations because they are explicitly based on the demeanor of the witnesses
at the hearing.
¶11 Because he found that the agency’s witnesses were more persuasive, the
administrative judge concluded that preponderant evidence supported the
agency’s charge that the appellant provided an altered email to support his
7
assertion that he applied, but failed to receive consideration, for the position. ID
at 6. We agree that preponderant evidence supports the charge.
¶12 The appellant argues that the agency failed to prove that he knew the
document he submitted was altered. PFR File, Tab 1 at 7. The intent to defraud
may be established by circumstantial evidence. Parker, 122 M.S.P.R. 353, ¶ 10.
Therefore, the Board may consider plausible explanations for why an appellant
provided incorrect information. Scheffler v. Department of Army, 117 M.S.P.R.
499, ¶ 4 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). Likewise, the absence
of a credible explanation for the incorrect information can constitute
circumstantial evidence of intent to deceive. Id.
¶13 Here, the administrative judge found, and we agree, that the appellant
provided no evidence or explanation to support his contention that he did not
know that the document he submitted was altered. See ID at 6. Our review of the
discrepancies between the acknowledgment letter submitted by the appellant and
the acknowledgment letter received by other applicants for the same position
further supports our finding. See I-3 IAF, Tab 28 at 23-24, 32-33. The altered
document is similar to an acknowledgment letter that the appellant received on
Friday, September 28, 2012, for another position. See id. at 18-19. In addition,
although both acknowledgment letters state they were sent on a Friday, the
document the appellant submitted states that it was sent on September 29, 2012—
a day after the other acknowledgment letter. Id. at 18-19, 32. Although the
appellant could have submitted an original dated email of the acknowledgment
letter that he alleged to have received, which would have supported his assertion
that he did not falsify it, he instead submitted copies of the acknowledgment
letter in the context of a reply and forwarded email. See, e.g., id. at 32-33. Thus,
we find that the evidence does not support the appellant’s assertion that he did
not have knowledge that the email he sent was altered. We find that the elements
of falsification are met here because the administrative judge found, and we
agree, that the appellant knowingly supplied wrong information in the form of the
8
altered document with the intent to defraud the agency for his own personal gain
in the form of obtaining consideration for the promotion. 5 See
Parker, 122 M.S.P.R. 353, ¶¶ 10, 16. We therefore find that the administrative
judge properly sustained the first charge. See Scheffler, 117 M.S.P.R. 499, ¶¶ 7-8
(determining that the appellant’s false statements were knowing and intentional
rather than the result of an honest mistake, despite his claim that he could have
honestly but erroneously relied on an altered document).
The administrative judge properly sustained the lack of candor charge.
¶14 As noted above, the administrative judge concluded that the agency showed
by preponderant evidence that the appellant lacked candor when he claimed that
the altered email was the result of a computer glitch. ID at 7-8. The appellant
asserts that the administrative judge improperly sustained the lack of candor
charge. PFR File, Tab 1 at 5-7 (citing Ludlum v. Department of Justice, 278 F.3d
1280, 1284 (Fed. Cir. 2002)). For the reasons discussed below, we agree with the
administrative judge that the agency also has proved the lack of candor charge.
¶15 While falsification involves an affirmative misrepresentation, lack of
candor is a broader and more flexible concept. Ludlum, 278 F.3d at 1284. Its
contours and elements depend upon the particular context and conduct involved.
Id. When an underlying misconduct charge has been proven, a lack of candor
charge also must be sustained on the basis of the appellant’s failure to respond
truthfully or completely when questioned about matters relating to the proven
misconduct. Id. (quoting Gootee v. Veterans Administration, 36 M.S.P.R. 526,
529 (1988)).
¶16 The administrative judge credited the affidavit of a former agency employee
and the testimony of the inquiry officer that the appellant stated that a computer
5
The administrative judge did not specify whether he considered the charge under a
falsification standard or a lack of candor standard. See ID at 2-6. However, because we
sustain the charge based upon the higher standard of falsification, any confusion in this
respect is harmless.
9
glitch caused the discrepancy between his acknowledgment letter and that of
other applicants. ID at 7; see I-3 IAF, Tab 5 at 65. The administrative judge
found that the appellant did not dispute making these statements. ID at 7. He
further found that the appellant’s claim that the discrepancy was caused by a
computer glitch was undermined by the credible testimony of agency witnesses
and the fact that there was no evidence that the appellant even completed an
application for the position in question. Id. We see no reason to disturb these
findings. 6
¶17 The appellant, however, asserts that the administrative judge improperly
sustained the lack of candor charge because the agency failed to prove the
element of deception necessary for this charge. PFR File, Tab 1 at 5-7 (citing
Ludlum, 278, F.3d at 1284). We disagree. In Ludlum, the U.S. Court of Appeals
for the Federal Circuit stated, “Although lack of candor necessarily involves an
element of deception, ‘intent to deceive’ is not a separate element of that
offense—as it is for ‘falsification.’” Id. at 1284-85. We agree with the
administrative judge that the appellant knew the discrepancies in his
acknowledgment letter were not caused by a computer glitch, but nevertheless
stated that the glitch had caused the discrepancies. See ID at 5-7. Therefore, the
appellant’s statements concerning the computer glitch contained an element of
deception. See Rhee v. Department of the Treasury, 117 M.S.P.R. 640, ¶ 10
(2012) (finding that Ludlum requires the agency to produce some evidence that
the appellant’s actions, under the circumstances, involved an element of
deception), overruled on other grounds by Savage v. Department of the
Army, 122 M.S.P.R. 612 (2015). Additionally, as previously discussed, in cases
6
The administrative judge found that the record also supported the conclusion that the
appellant knowingly supplied incorrect information with the intention of deceiving the
agency. ID at 7-8 (citing Prather v. Department of Justice, 117 M.S.P.R. 137, ¶ 17
(2011)). Because we find that the agency proved the charge of lack of candor, we need
not address this finding to the extent that it was intended as an additional finding of
falsification.
10
such as this one, where an underlying misconduct charge has been proven, a lack
of candor charge also must be sustained based on the appellant’s failure to
respond truthfully when questioned about matters relating to the proven
misconduct. Ludlum, 278 F.3d at 1284. Accordingly, we find that the
administrative judge properly sustained the lack of candor charge. 7 See Little v.
Department of Transportation, 112 M.S.P.R. 224, ¶ 20 (2009) (finding that the
agency proved the appellant’s lack of candor during an investigation where the
Board sustained the charge for the misconduct that was the subject of the
investigation).
The agency established nexus.
¶18 The administrative judge found that the agency’s disciplinary action
promoted the efficiency of the service. ID at 8. The appellant has not challenged
this finding on review, and we see no reason to disturb it because removal for
falsification of documents has consistently been found to be for such cause as will
promote the efficiency of the service. See, e.g., Trybul v. Department of the
Army, 22 M.S.P.R. 290, 292 (1984), aff’d, 776 F.2d 1059 (Fed. Cir. 1985)
(Table).
It is necessary to remand the appeal for further adjudication of the appellant’s
EEO retaliation claim.
¶19 When an appellant raises an affirmative defense in an appeal either by
checking the appropriate box in an appeal form, identifying an affirmative
defense by name, or by alleging facts that reasonably raise such an affirmative
defense, the administrative judge must address the affirmative defense in any
close of record order or prehearing conference summary and order. Gath v. U.S.
7
The appellant challenges the agency’s investigation of the charges. PFR File, Tab 1
at 6-7, 14. The Board has held that an agency does not have a duty to investigate the
appellant’s misconduct before proposing his removal, but only to make reasonable
inquiries into exonerating facts brought to its attention by an appellant before removing
him. Uske v. U.S. Postal Service, 60 M.S.P.R. 544, 550 (1994), aff’d, 56 F.3d 1375
(Fed. Cir. 1995). Therefore, the thoroughness or lack of thoroughness of the agency’s
investigation is not a proper basis for not sustaining the agency’s charges. Id.
11
Postal Service, 118 M.S.P.R. 124, ¶ 11 (2012). Even if an appellant expresses the
intention to withdraw such an affirmative defense, the administrative judge must,
at a minimum, in the close of record order or prehearing conference summary and
order, identify the affirmative defense, explain that the Board will no longer
consider it when deciding the appeal, and give the appellant an opportunity to
object to the withdrawal of the affirmative defense. Id.
¶20 Here, the appellant asserted in his initial appeal that the agency committed a
prohibited personnel practice under 5 U.S.C. § 2302(b)(1) when it proposed his
removal and issued a removal decision in retaliation for his involvement in
protected activity. I-1 IAF, Tab 1. The appellant was not informed of his burden
for establishing the affirmative defense. The administrative judge issued a
prehearing conference summary, in which he stated that the appellant was not
asserting any affirmative defenses, but it did not state that the appellant had
abandoned his affirmative defense of EEO retaliation. I-3 IAF, Tab 19 at 1.
Although he was given an opportunity to respond to the summary, id. at 3, the
appellant, who was represented by counsel, failed to do so. The initial decision
did not address his affirmative defense. See ID. On petition for review, the
appellant now asserts that the administrative judge failed to adjudicate his claim
of EEO retaliation. PFR File, Tab 1 at 8-9. Accordingly, we find that the
administrative judge did not give the appellant proper notice regarding his
affirmative defense and it thus is necessary to remand the appeal for further
adjudication of the affirmative defense. See Gath, 118 M.S.P.R. 124, ¶ 12.
¶21 Because an adverse action is sustainable only if the appellant cannot
establish his affirmative defenses, we vacate the administrative judge’s initial
decision sustaining his removal and remand the appeal for further development of
the record on the appellant’s affirmative defense of EEO retaliation. See, e.g.,
Viana v. Department of the Treasury, 114 M.S.P.R. 659, ¶ 8 (2010). If, after
remand, the administrative judge denies the appellant’s affirmative defense, he
12
may readopt the previous findings concerning the agency’s charges and the
reasonableness of the penalty. Id.
ORDER
¶22 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.