The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WAYNE C. HAWKES, DOCKET NUMBERS
Appellant, SF-0752-15-0049-I-1
SF-0752-13-0338-I-2
v.
DEPARTMENT OF AGRICULTURE,
Agency. DATE: November 2, 2015
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Wayne C. Hawkes, Davis, California, pro se.
Suzanne L. Lawrence, Beltsville, Maryland, 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 his 30-day suspension and his subsequent 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 erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the facts of the case; the administrative 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).
¶2 Effective March 3, 2013, the agency suspended the appellant for 30 days
from his position as a GS-14 Research Chemist with the Western Human
Nutrition Research Center based on: (1) conduct unbecoming; (2) causing a
disruption in the workplace; and (3) failure to follow instructions. Hawkes v.
Department of Agriculture, MSPB Docket No. SF-0752-13-0338-I-1, Initial
Appeal File (0338 IAF), Tab 6 at 20-23 of 119. In charge (1), the agency found
that, during a discussion with a colleague, V., 2 the appellant said to her
“Sometimes they drive me so crazy, I just want to kill somebody!” and that he
further said, in discussing another colleague, H., that he knew where she lived
and where her son went to school. Id. at 20. The agency found that the same
statements supported charge (2). Id. at 21. And, in charge (3), the agency found
that the appellant failed to timely complete an on-line anger management class
that he had been directed to take. In imposing the 30-day suspension, the agency
considered that, several months before, the appellant received a Letter of Caution
based on three incidents of angry outbursts. Id.
2
The administrative judge referred to certain individual employees involved in the
charged misconduct by single initials. We do so as well.
3
¶3 On appeal, the appellant disputed the charges and claimed a violation of due
process/harmful error in being denied notice of the charges, argued that the
agency’s action did not promote the efficiency of the service, alleged
discrimination based on disparate treatment/perceived disability, claimed
retaliation for certain protected activities and for whistleblowing, challenged the
penalty, and claimed that the agency committed a prohibited personnel practice,
specifically, by violating 5 U.S.C. § 2302(b)(13). 0338 IAF, Tab 1 at 6, 10-11;
Hawkes v. Department of Agriculture, MSPB Docket No. SF-0752-13-0338-C-2,
Petition for Review File, Tab 2. He requested a hearing. 0338 IAF, Tab 1 at 5.
¶4 Effective October 19, 2014, the agency removed the appellant for conduct
unbecoming a Federal employee. Hawkes v. Department of Agriculture, MSPB
Docket No. SF-0752-15-0049-I-1, Initial Appeal File (0049 IAF), Tab 6 at 15-18.
The agency found that, during a meeting attended by a number of senior scientists
to discuss a new study, the appellant loudly and vehemently stated that he did not
wish to work on the study if the named Research Leader, who was also the
appellant’s supervisor, was going to be the Principal Investigator, claiming that
he had labeled the appellant as “unfit for Federal duty” and “incapable of
rehabilitation” in a past disciplinary action, and suggesting that the supervisor
might “lie and cheat” and not allow the appellant fair access to study resources
and manuscript authorship. Id. at 48. The agency further found that, during the
meeting, the appellant continually yelled and interrupted colleagues as they
attempted to speak, shouting “Shut up! Shut up!” to a particular colleague, and
pointing his finger at another, shouting that she had no business being at the
meeting. Id. at 48-49. In imposing removal, the agency considered the
appellant’s past record consisting of the same Letter of Caution referenced in the
30-day suspension action, the 30-day suspension itself, and a Letter of Reprimand
the appellant received in early 2013 for sending harassing emails to V. after his
supervisor had told him to stop. Id. at 50.
4
¶5 On appeal of the removal, the appellant raised the same claims he did in his
challenge to the 30-day suspension. 0049 IAF, Tabs 1, 18. He requested a
hearing. 0049 IAF, Tab 4. The administrative judge joined the two appeals for
hearing and adjudication. 0049 IAF, Tab 5.
¶6 Thereafter, the administrative judge issued an initial decision affirming both
actions. 0049 IAF, Tab 24, Initial Decision (ID) at 1, 24. He first addressed the
30-day suspension. He found that, because charges (1) and (2) were based on the
same facts, the generic charge of conduct unbecoming merged into the more
specific charge of causing disruption in the workplace, ID at 5, and that that
charge was sustained, ID at 6-7, as was charge (3), failure to follow instructions,
ID at 8. The administrative judge next addressed the removal, and the single
charge that supported it, conduct unbecoming a Federal employee, finding it
sustained. ID at 8-9. As to both actions, the administrative judge found a clear
nexus between the charged misconduct, all of which occurred at work, and the
efficiency of the service. ID at 9. In addressing the penalties, the administrative
judge noted the factors, both mitigating and aggravating, that the deciding official
considered in each action. 3 ID at 10-12. The administrative judge addressed the
appellant’s claim that he was disciplined more harshly than other employees who
engaged in similar misconduct, but found that he did not establish that claim. ID
at 12-13. Deferring to the agency’s penalty decisions, the administrative judge
found that a 30-day suspension and removal do not exceed the maximum
reasonable penalty for the sustained charges. ID at 13-14.
¶7 The administrative judge then considered the appellant’s affirmative
defenses. Rejecting his claim of denial of due process/harmful procedural error,
the administrative judge found that the appellant was afforded notice and an
opportunity to respond to both actions; that there was no evidence that the
deciding official engaged in any improper ex parte communications; that, to the
3
The same individual served as the deciding official in both the suspension and the
removal actions.
5
extent the appellant claimed he was denied due process in connection with other
actions the agency took, none of them fell within the Board’s jurisdiction; and
that the appellant had identified no other procedural error committed by the
agency in carrying out the suspension or the removal. ID at 14-15. In addressing
the claim of discrimination based on perceived disability, the administrative judge
acknowledged that the appellant was a qualified individual, and assumed, without
deciding, that the agency regarded him as disabled by an anger management
problem, but he found that the appellant failed to show that any such perception
was a contributing factor in the agency’s decisions to suspend or remove him. ID
at 15-16. As for the appellant’s claim that the removal was in retaliation for his
having raised a claim of disability discrimination in his suspension appeal or his
having filed a defamation lawsuit against V., the administrative judge found no
connection between the appellant’s activities and the removal. ID at 16-17.
¶8 Regarding the appellant’s claim of whistleblower retaliation, the
administrative judge found that he engaged in at least two types of protected
activity: disclosing to agency officials and the Occupational Safety and Health
Administration a potentially serious safety problem when several chemical fume
hoods failed without warning, and exercising an appeal right granted by law as to
remedying whistleblower retaliation, specifically, having filed three prior Board
appeals in which he alleged that various personnel actions were taken against him
in retaliation for whistleblowing. 4 The administrative judge further found that the
appellant’s disclosures about the chemical fume hood failures were a contributing
factor in both the suspension and the removal, and that the last of his three prior
Board appeals (the one involving the 30-day suspension) was a contributing
4
The administrative judge found that this claim fell under the Whistleblower Protection
Enhancements Act which, because it was enacted after the appellant’s suspension but
before his removal, applied only to the latter action. ID at 17-18.
6
factor in the removal. 5 ID at 18-19. The administrative judge found, however,
that the agency showed by clear and convincing evidence that it would have taken
the personnel actions against the appellant, even in the absence of his protected
disclosures. ID at 20-23.
¶9 Finally, the administrative judge considered the appellant’s claim that the
agency violated 5 U.S.C. § 2302(b)(13), which makes it a prohibited personnel
practice for an agency to implement or enforce any nondisclosure agreement if it
does not contain a specific disclaimer set forth in the statute. The administrative
judge found, however, that the appellant did not show that his removal was based
on any such prohibited personnel practice, and that he was therefore not entitled
to relief under that theory. ID at 23.
¶10 The appellant has filed a petition for review, Hawkes v. Department of
Agriculture, MSPB Docket No. SF-0752-15-0049-I-1, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 4,
and the appellant has replied thereto, PFR File, Tab 5. For ease of analysis, we
have addressed the appellant’s claims on petition for review in a different order
than they were raised.
The appellant has not shown error in the administrative judge’s decision to
adjudicate the suspension and removal appeals simultaneously.
¶11 The appellant challenges the administrative judge’s decision to adjudicate
the suspension appeal and the removal appeal “simultaneously and in parallel,” 6
rather than sequentially. PFR File, Tab 1 at 7. The Board’s administrative judges
have the authority to conduct fair and impartial hearings and to issue timely and
clear decisions based on statutes and legal precedents. 5 C.F.R. § 1201.41(b).
5
The administrative judge duly considered whether the first two Board appeals, filed in
the early 2000s, were contributing factors in the actions taken, but found that they were
not. ID at 19.
6
As the administrative judge explained, he addressed the merits of the charges
supporting the suspension and then the merits of the charge supporting the removal,
then the nexus for the charges and the reasonableness of both penalties, and finally the
appellant’s affirmative defenses. ID at 5.
7
The appellant has pointed to no statute or legal precedent which requires that an
administrative judge, having joined two appeals, must adjudicate them in the
manner urged by the appellant, and we are aware of none. We thus find that the
administrative judge acted appropriately under the circumstances and that the
appellant has not shown any error by this allegation.
The appellant has not shown error in the administrative judge’s decision to
sustain the causing a disruption in the workplace charge.
¶12 In connection with the 30-day suspension, the appellant alleges on review
that, although the agency charged him with causing disruption in the workplace,
the underlying charge was that he made a threat which the agency was then
required to prove, but that his remarks did not rise to that level. PFR File, Tab 1
at 20-24. He points to the notice of proposed removal wherein the proposing
official stated that “[t]he fact that you threatened to get even not only with the
employee, but her family with whom you have no personal relationship, is
unsettling.” 0338 IAF, Tab 6 at 81 of 119. In determining how adverse action
charges are to be construed, the Board will examine the structure and language of
the proposal notice. Williams v. Department of the Army, 102 M.S.P.R. 280,
¶ 5 (2006). Here, the charge in question was causing a disruption in the
workplace, and the narrative description of the actions that constitute the charged
misconduct explains why, in the agency’s view, the appellant’s statements
disrupted the workplace. 0338 IAF, Tab 6 at 80 of 119. Despite the proposing
official’s lone statement elsewhere in the notice, we find that, taken as a whole
and considering the entire proposal notice, the agency did not charge the
appellant with making a threat and therefore was not required to prove that his
statements constituted a threat. See Pinegar v. Federal Election Commission,
105 M.S.P.R. 677, ¶ 28 (2007). For that reason, we also reject the appellant’s
claim that the agency denied him due process or committed harmful procedural
error in denying him the right to respond to the threat charge. PFR File, Tab 5
at 4-5.
8
¶13 The appellant further argues that any workplace disruption was caused by
V.’s false report that he had threatened H., not by his statements, and that, in the
alternative, there was no workplace disruption. PFR File, Tab 1 at 29. The
administrative judge found it undisputed that there was a disruption in the
workplace after the appellant made the statements because V. was concerned
enough to report the statements to her supervisor the following day, the agency
notified H. who expressed concern for her personal safety, and the agency placed
the appellant on administrative leave for 3 weeks, requested an investigation by
the inspector general, and imposed a no-contact order prohibiting the appellant
from communicating with H. ID at 6. The administrative judge specifically
considered whether it was V.’s reporting of the appellant’s statements, rather than
the statements themselves, that caused the workplace disruption, concluding that
it was not. The administrative judge reasoned that V.’s report was accurate, that
she credibly testified that the appellant’s tone when he made the statements made
her worried that he was serious, enough so that she reported the matter to her
supervisor the next day, and that she had no motive to exaggerate what the
appellant said or to get him in trouble. The administrative judge considered the
appellant’s claim that V.’s report was inaccurate because it was based on a dream
she had that night, but found that to be a misunderstanding of her testimony.
Rather, the administrative judge related V.’s explanation that she had been
struggling to decide what to do, but that, during the night, she recalled a
traumatic incident from her personal life where someone had displayed a facial
expression similar to the appellant’s. The administrative judge reasoned that V.
drew from this previous experience in deciding how to interpret the appellant’s
demeanor and ultimately concluded that she should report his statements. ID at 7.
Although the appellant disputes the administrative judge’s credibility
determinations and findings, we discern no reason to reweigh the evidence or
9
substitute our assessment of the record evidence for that of the administrative
judge. 7 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 where she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); see also Haebe v. Department of Justice, 288 F.3d 1288,
1302 (Fed. Cir. 2002).
The appellant has not shown that the administrative judge erred in finding that the
agency established by clear and convincing evidence that it would have taken the
same personnel actions regardless of the appellant’s whistleblowing.
¶14 The appellant challenges the administrative judge’s finding that V. was not
a comparator employee for purposes of his claim of retaliation for
whistleblowing. PFR File, Tab 1 at 9. As noted, the administrative judge found
that the appellant made protected disclosures that were a contributing factor in the
two personnel actions, but that the agency proved by clear and convincing
evidence that it would have taken those actions in the absence of the appellant’s
whistleblowing. ID at 18-23. In connection with the latter finding, the
administrative judge considered, inter alia, the appellant’s claim that the agency
treated V. differently by not disciplining her when she disrupted a mediation
session in which certain employees were required to participate along with the
appellant to try to resolve his interpersonal problems. See Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999) (in determining whether the
agency has shown by clear and convincing evidence that it would have taken the
same personnel action in the absence of whistleblowing, the Board will consider
the strength of the agency’s evidence in support of its action, the existence and
strength of any motive to retaliate on the part of agency officials who were
involved in the decision, and any evidence that the agency takes similar actions
against employees who are not whistleblowers but who are otherwise similarly
7
The appellant does not challenge the administrative judge’s findings that the agency
established the misconduct charged in the removal action. Based on our review, we
discern no basis upon which to disturb those findings.
10
situated). The administrative judge found that V.’s conduct was not similar to the
appellant’s and that she was “probably a whistleblower herself” because she had
disclosed to management the appellant’s statements about getting even with H.
ID at 22. The appellant argues on review that V. should have been considered a
comparator employee for purposes of the 30-day suspension because she did not
have a “whistleblower-like status” in July 2012, when the agency started taking
actions against him that, in his view, led to the 30-day suspension and because,
during 2012, neither she nor the appellant had prior discipline. PFR File, Tab 1
at 9. Notwithstanding his findings, the administrative judge reasoned that this
third Carr factor weighed slightly in the appellant’s favor because there were
some similarities between V.’s conduct and the appellant’s, and because, while V.
may have been a whistleblower, she did not blow the whistle as frequently or as
forcefully as did the appellant. ID at 22. Therefore, to the extent the appellant
claims that the administrative judge erred by not finding V. to be a comparator
employee for purposes of the whistleblowing defense, 8 the appellant has not
supported his claim. The record reflects that the administrative judge resolved
that Carr factor in the appellant’s favor, even though he subsequently found, on
consideration of the other factors, that the agency proved by clear and convincing
evidence that it would have taken the personnel actions even absent the
appellant’s protected disclosures. ID at 22-23.
¶15 The appellant also argues that the administrative judge erred in his analysis
of the second Carr factor, the existence and strength of any motive to retaliate on
8
The appellant also argues that the administrative judge erred in using the “nearly
identical” standard in determining whether V. was an appropriate comparator, a higher
standard reserved for the consideration of such claims in the context of a Title VII case.
PFR File, Tab 1 at 16-17; see Spahn v. Department of Justice, 93 M.S.P.R. 195, ¶ 13
(2003). Similarly, the appellant argues that the administrative judge ignored precedent
from the U.S. Court of Appeals for the Federal Circuit which cautions against
construing the similarity between employees so narrowly as to require virtual identity.
PFR File, Tab 1 at 14-15; see Whitmore v. Department of Labor, 680 F.3d 1353,
1373-74 (Fed. Cir. 2012); Carr, 185 F.3d at 1323. As noted, the record does not
support the appellant’s claim. ID at 22.
11
the part of agency officials who were involved in the decision. PFR File, Tab 1
at 27-29. The appellant contends that the administrative judge failed to consider
his claim that the proposing official became a “cat’s paw” for his own supervisor,
the Center’s Director, who had “strong motives to retaliate and long-standing
personal animus” towards the appellant. Id. at 28. Specifically, the appellant
argues that the Center’s Director was involved in most aspects of his supervision,
that she was responsible for some of the actions the agency took against the
appellant that preceded the actions on appeal, and that she otherwise influenced
the proposing official to propose those actions. Id. at 28-29.
¶16 The Supreme Court has adopted the term “cat’s paw” to describe events in a
case in which a particular management official, acting because of an improper
animus, influences an agency official who is unaware of the improper animus
when implementing a personnel action. See Staub v. Proctor Hospital, 562 U.S.
411, 416, 421-22 (2011). Although the administrative judge did not specifically
refer to “cat’s paw” in his analysis, he did consider the appellant’s claim
regarding the Center Director in the context of the second Carr factor that
employs a similar analysis. See Whitmore, 680 F.3d at 1369. Specifically, the
administrative judge acknowledged that the Center Director may have had a
stronger motive to retaliate against the appellant than the proposing or deciding
officials because some of the appellant’s safety concerns arguably reflected
poorly on her leadership. The administrative judge further found that, while the
Center Director would normally have been the deciding official for the actions at
issue, the agency replaced her with someone outside the chain of command
because of her past history with the appellant. The administrative judge found
that the Center Director had no influence over the suspension, and that her role in
the removal was quite minor; that is, she had attended the meeting the appellant
disrupted and, like the other attendees, she wrote a statement describing what she
had observed. The administrative judge acknowledged that the Center Director’s
statement that it “may be appropriate” for the appellant’s supervisor to take
12
disciplinary action against the appellant could be read as a recommendation to the
proposing official, but found no evidence that it carried any significant weight
with the proposing official, noting that the Center Director thought that discipline
also was warranted because of the appellant’s alleged breach of the
confidentiality agreement, but that the proposing official chose not to include that
charge in the notice of proposed removal. ID at 21-22. The administrative judge
concluded that the motive factor weighed in the agency’s favor, although not as
strongly as the first Carr factor, the strength of the agency’s evidence in support
of its actions. ID at 22.
¶17 As to that factor, the administrative judge found that the facts underlying
both actions were undisputed and that the penalties imposed for the offenses were
within the tolerable limits of reasonableness. ID at 20. Considering all the
factors, the administrative judge concluded that he was left with the firm belief
that the agency would have suspended and removed the appellant, even absent his
whistleblowing. The administrative judge acknowledged that the appellant had
clashed with management and coworkers for years over a variety of issues, many
of them safety-related, but stated that he was convinced that the protected
activities at issue ultimately made no difference in the agency’s decision to take
disciplinary actions against the appellant, finding it particularly important that the
deciding official, who had little if any motive to retaliate, conducted a full and
independent review of the propriety of the actions. The administrative judge
concluded therefore that the agency proved by clear and convincing evidence that
it would have made the same decisions in the absence of the appellant’s
whistleblowing and that therefore the appellant had not established his defense of
whistleblower retaliation. ID at 23. Although the appellant disagrees with the
administrative judge’s findings, we discern no reason to disturb them because, as
set forth above, he considered all of the evidence and neither ignored nor
disregarded that which was countervailing to his conclusion. See Whitmore,
680 F.3d at 1368.
13
The appellant has failed to show that the administrative judge erred in finding
that the agency did not violate his due process rights.
¶18 The appellant also challenges the administrative judge’s findings that he
lacked jurisdiction to consider the appellant’s claim that the agency took other
actions against him, such as moving his office and restricting his contacts with
other scientists, and that he (the administrative judge) therefore had no authority
to consider whether the appellant was deprived of due process regarding those
actions. PFR File, Tab 1 at 17-19; ID at 14-15. On review, the appellant argues
that these actions as well as others, including forcing him to resign from the
safety committee, ordering him to take an anger management course, and
prohibiting his access to the floor where the lab was located, are “covered
actions” under 5 U.S.C. § 2302(a)(2)(A)(xii) because they involve significant
changes in his duties, responsibilities, or working conditions. Under the statutory
section to which the appellant refers, certain actions are considered “personnel
actions” for purposes of an employee’s establishing the Board’s jurisdiction over
an individual right of action (IRA) appeal. See 5 C.F.R. §§ 1209.2(b)(1), .4(a).
However, the appellant did not file an IRA appeal; rather, he elected to file
otherwise appealable action appeals, see 5 C.F.R. § 1209.2(b)(2), challenging the
agency’s suspending and removing him and claiming, inter alia, that, in taking
these actions, the agency retaliated against him for whistleblowing. The
administrative judge analyzed this claim in accordance with Board precedent, ID
at 17-23, and the appellant has not shown error in that analysis.
¶19 In the same vein, the appellant contends that, because of these other actions,
as described above, the agency should have been required to show by clear and
convincing evidence that it would have removed him absent “all the prohibited
personnel practices that were contributing factors” to the agency’s actions. PFR
File, Tab 1 at 10-14. And, the appellant claims that the administrative judge
should have considered all of his protected activities (filing a civil law suit and
claiming disability discrimination) in connection with the agency’s burden to
14
show by clear and convincing evidence that it would have taken the same actions
absent his activities. In so arguing, the appellant misstates the agency’s burden
of proof as to his affirmative defense of retaliation for whistleblowing. As we
have stated, where, as here, the appellant demonstrates that he engaged in
protected whistleblowing activity that was a contributing factor to the action(s)
under appeal, the agency must show by one of the highest of burdens, clear and
convincing evidence, that it would have taken such action in the absence of the
appellant’s protected activity. Carr, 185 F.3d at 1322. The administrative judge
correctly applied this test to the appellant’s whistleblowing claim. ID at 20-23.
The appellant has not shown that the administrative judge erred in his analysis of
the appellant’s claims of reprisal for his nonwhistleblower activities.
¶20 Regarding the alleged nonwhistleblower-related activity described by the
appellant, retaliation for breaching a confidentiality agreement by filing a civil
lawsuit and claiming disability discrimination, PFR File, Tab 1 at 11, the
administrative judge addressed each of these claims in the proper context. As to
the first claim, the administrative judge assumed that the appellant’s filing of the
lawsuit against V. was a protected activity, but found that the appellant failed to
establish a nexus between that activity and the removal action. ID at 16-17; see
Rhee v. Department of the Treasury, 117 M.S.P.R. 640, ¶ 21 (2012), overruled on
other grounds by Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 43 n.8
(2015). The appellant argues that the administrative judge erred in not finding
that the breach of the confidentiality agreement and the filing of the lawsuit were
contributing factors to the agency’s actions. PFR File, Tab 1 at 12. In so
arguing, the appellant is attempting to apply whistleblower retaliation law to
nonwhistleblower claims. The contributing factor analysis pertains to an
employee’s burden of proof when he raises whistleblower retaliation as an
affirmative defense to an appealable action. See Hamilton v. Department of
Veterans Affairs, 115 M.S.P.R. 673, ¶ 25 (2011). The claim relating to the
appellant’s breach of the confidentiality agreement by filing a civil suit against V.
15
is a nonwhistleblower claim and subject to a different analysis. The appellant has
not shown that the administrative judge erred in finding that, in the absence of a
showing of a causal connection between that activity and the adverse action, the
appellant failed to establish this claim. See Crump v. Department of Veterans
Affairs, 114 M.S.P.R. 224, ¶ 10 (2010), overruled on other grounds by Savage v.
Department of the Army, 122 M.S.P.R. 612, ¶ 43 n.8.; Wildeman v. Department of
the Air Force, 23 M.S.P.R. 313, 320 (1984); see also Warren v. Department of the
Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986), superseded by statute on other
grounds as stated in Alarid v. Department of the Army, 122 M.S.P.R. 600 (2015);
ID at-17-23. Although the appellant argues that the deciding official mentioned
the lawsuit against V. on the Douglas factors analysis form, she indicated that she
did so to illustrate the appellant’s poor potential for rehabilitation, 0049 IAF,
Tab 6 at 22, and the administrative judge credited the deciding official’s
testimony that the lawsuit against V. played no role in her actions, ID at 16-17;
see Haebe, 288 F.3d at 1301-02 (finding that the Board must give deference to an
administrative judge’s credibility determinations when they are based, implicitly
or explicitly, on the observation of the demeanor of witnesses testifying at a
hearing unless there are “sufficiently sound” reasons to overturn such
determinations).
The appellant has not shown that the administrative judge erred in his analysis of
the appellant’s claim of disability discrimination.
¶21 In addressing the appellant’s claim that the agency disciplined him because
it regarded him as disabled by issues related to anger management, the
administrative judge found that the appellant was a qualified individual because
he could perform the essential functions of his position with or without
accommodation, and assumed, without deciding, that the agency regarded the
appellant as disabled. ID at 15. Notwithstanding, the administrative judge found
that the appellant failed to show that this perception was a contributing factor in
16
the agency’s decisions to suspend or remove him. 9 ID at 15-16. Specifically, the
administrative judge found no persuasive evidence suggesting that it was the
appellant’s mental health, rather than the underlying misconduct, that led the
proposing official to initiate disciplinary action against him, and no evidence that
the reasons the agency gave for the actions were a pretext for discrimination
based on the appellant’s perceived disability. ID at 16. Although the appellant
urges that the agency bears the burden to show by clear and convincing evidence
that the agency would have taken these actions against him, we need not reach
that analysis because we find that the appellant failed to meet his burden of
showing that the perception of him as disabled was a motivating factor in the
agency’s decisions to suspend or remove him. See Southerland v. Department of
Defense, 119 M.S.P.R. 566, ¶¶ 23-24 (2013) (discussing that, once an appellant
meets his burden, an agency may limit the extent of its liability if it demonstrates
that it would have taken the same adverse action absent the impermissible
motivating factor). 10
The appellant has not shown error in the administrative judge’s penalty analysis.
¶22 The appellant challenges the administrative judge’s finding that removal
was a reasonable penalty. 11 Specifically, the appellant argues that the
9
In his analysis, the administrative judge misused the proper terminology by
determining that the perception that the appellant was disabled was not a “contributing”
factor in the agency’s decisions to suspend or remove him. The proper standard is
whether that perception was a “motivating” factor in those decisions. See Southerland
v. Department of Defense, 119 M.S.P.R. 566, ¶ 23 (2013). Notwithstanding this
misstatement, we find that the appellant failed to show that the perception that he was
disabled was a “motivating” factor in the agency’s decisions to suspend or remove him.
10
To the extent the appellant also argues, as to his claim of perceived disability, that V.
should have been considered as a comparator employee, PFR File, Tab 1 at 10, the
administrative judge found that the appellant did not show that the agency treated any
similarly situated employees more leniently, much less that it did so in the “nearly
identical” circumstances needed to support an inference of discrimination, ID at 16;
Spahn, 93 M.S.P.R. 195, ¶ 13.
11
The appellant does not specifically challenge the reasonableness of the 30-day
suspension. When an agency proves fewer than all of its charges, the Board may not
17
administrative judge improperly considered the suspension as prior discipline to
enhance the removal, even though the suspension action was never reviewed “by
an independent authority.” PFR File, Tab 1 at 7-8. We construe the appellant’s
claim to be that, in addressing the reasonableness of the removal penalty, it was
improper for the agency and the administrative judge to consider the 30-day
suspension as part of the appellant’s past record because the Board had not yet
issued a final order on the propriety of that action. The Board’s review of a prior
disciplinary action is limited to determining whether that action is clearly
erroneous, if the employee was informed of the action in writing, the action is a
matter of record, and the employee was permitted to dispute the charges before a
higher level of authority than the one that imposed the discipline. Bolling v.
Department of the Air Force, 9 M.S.P.R. 335, 339-40 (1981). The appellant has
not shown that the agency’s or the administrative judge’s consideration of the
30-day suspension as past record in the removal appeal violated the Bolling
criteria. The fact that the appellant subsequently challenged the suspension
action to the Board and continues to do so does not command a different result.
Cf. Suggs v. Department of Veterans Affairs, 113 M.S.P.R. 671, ¶ 11 (2010)
(determining that an employee’s past disciplinary record may be considered when
setting a penalty for misconduct, even if it is the subject of a pending grievance),
aff’d, 415 F. App’x 240 (Fed. Cir. 2011).
¶23 The appellant further argues that, even if it was appropriate to consider the
30-day suspension as prior discipline in the removal appeal, the deciding official
mischaracterized that prior misconduct by stating in the decision letter that “these
independently determine a reasonable penalty, but may impose the same penalty
imposed by the agency based on a justification of that penalty as the maximum
reasonable penalty after balancing the mitigating factors. Gray v. U.S. Postal Service,
97 M.S.P.R. 617, ¶ 11 (2004), aff’d, No. 05-3074, 2005 WL 1368093 (Fed. Cir. June 9,
2005). The administrative judge found that the deciding official conducted a thorough
analysis of the aggravating and mitigating factors on the basis of which she determined
to mitigate the proposed removal to a 30-day suspension, and that that analysis was
appropriate. ID at 10. We discern no basis upon which to disturb those findings.
18
charges were the result of you threatening harm to a co-worker and her family.”
PFR File, Tab 1 at 8; 0049 IAF, Tab 6 at 16. As noted above, the Board’s review
of prior discipline is limited and does not include consideration of the merits of
that discipline; rather, the Board will discount the prior discipline only if it is left
with a definite and firm conviction that a mistake has been committed.
Rosenberg v. Department of Transportation, 105 M.S.P.R. 130, ¶ 33 (2007).
Regardless of the deciding official’s characterization of the conduct that formed
the basis for the 30-day suspension, the appellant has not shown that the action
was clearly erroneous or that the administrative judge erred in considering it.
¶24 The appellant has not shown that the administrative judge erred in
upholding the removal penalty as reasonable. When all of the agency’s charges
are sustained, the Board will review the agency-imposed penalty only to
determine whether the agency considered all the relevant factors and exercised
management discretion within tolerable limits of reasonableness. The Board will
modify a penalty only when it finds that the agency failed to weigh the relevant
factors or that it clearly exceeded the bounds of reasonableness in determining the
penalty. Harris v. U.S. Postal Service, 100 M.S.P.R. 613, ¶ 13 (2005). The
administrative judge found, in the removal case, that the deciding official
considered the relevant factors, both aggravating and mitigating, and that, based
on the sustained misconduct and considering the appellant’s past record, the
deciding official’s penalty analysis and determination were appropriate. ID
at 10-14; see, e.g., Suggs, 113 M.S.P.R. 671, ¶ 15; Kirkland-Zuck v. Department
of Housing & Urban Development, 90 M.S.P.R. 12, ¶ 19 (2001), aff’d, 48 F.
App’x 749 (Fed. Cir. 2002). 12
12
The appellant also argues on review that the deciding official considered
unsubstantiated prior allegations of sexual harassment against him in her decision to
remove. PFR File, Tab 1 at 8-9. The appellant did not raise this claim below.
Therefore, in the absence of a showing that it is based on new and material evidence not
previously available despite the appellant’s due diligence, the Board will not consider
it. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
19
¶25 The appellant also argues that the Board should take jurisdiction over
actions the agency took against him prior to the suspension and removal as a
unified penalty. PFR File, Tab 1 at 19-20. The Board may review a penalty in
addition to the one under appeal when the additional penalty is a unified penalty,
that is, when it arises out of the set of circumstances of which the employee was
found culpable. Brewer v. American Battle Monument Commission, 779 F.2d
663, 664 (Fed. Cir. 1985). None of these additional “penalties” as argued by the
appellant were imposed by the agency in connection with either the suspension or
the removal and they therefore cannot be considered a unified penalty with those
actions. Cf. Kirk v. Department of the Navy, 58 M.S.P.R. 663, 672 (1993)
(reviewing as a unified penalty the agency’s decision to reassign and suspend the
appellant, and to remove him as an agency representative from the Government
Industry Data Exchange Program in connection with a charge of sexual
harassment); Alsedek v. Department of the Army, 58 M.S.P.R. 229, 242 (1993)
(reviewing as a unified penalty the agency’s decision to demote and suspend the
appellant, and to exclude him from consideration for supervisory positons for
2 years in connection with a charge of sexual harassment).
The appellant has not shown that the administrative judge abused his discretion in
his rulings regarding witnesses and discovery.
¶26 The appellant also argues on review that the administrative judge abused his
discretion in denying three specific witnesses he had requested. PFR File, Tab 1
at 26-27. The record reflects that the appellant requested 16 witnesses, 0049 IAF,
Tab 15 at 20-21, and that the administrative judge approved 6, including the
appellant himself, 0049 IAF, Tab 18 at 7. In the December 16, 2014 prehearing
conference summary in which he set out his rulings, the administrative judge
advised the parties that any objections to the summary “must be received . . . by
December 23, 2014, or they will be deemed waived.” Id. at 9. The appellant did
not note any objections. Having failed to do so then, he is precluded from doing
20
so now on petition for review. See Miller v. U.S. Postal Service, 117 M.S.P.R.
557, ¶ 8 (2012); Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988).
¶27 Similarly, the appellant argues that the administrative judge abused his
discretion regarding discovery. PFR File, Tab 1 at 27. According to the
appellant, the administrative judge ordered the discovery process “halted” before
the agency responded to his request for certain information, refused his request to
continue discovery, and denied his request to subpoena V.’s medical records. In
his original acknowledgment order of October 20, 2014, the administrative judge
stated that initial requests or motions for discovery must be served on the other
party within 30 calendar days of the date of the order; that responses to such
requests must be served promptly but no later than 20 days after the date of
service of the other party’s discovery request or the Board’s order; and that
parties must attempt to resolve any discovery disputes before filing a motion to
compel with the administrative judge. 0049 IAF, Tab 2. The record does not
support the appellant’s claim that he timely engaged in discovery. It is clear that
he did not file a motion to compel with the administrative judge. Moreover, to
the extent that the appellant’s request, at the prehearing conference, to subpoena
V.’s medical records can be considered as a motion to compel, the appellant has
failed to show that the administrative judge abused his discretion by denying it.
See Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 73 (2012). Nor has the
appellant shown that the administrative judge improperly “halted” discovery
because, as noted, there is no indication that the appellant timely engaged in the
process, consistent with either the administrative judge’s order or the Board’s
regulations. See 5 C.F.R. § 1201.73(d).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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
21
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:
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
22
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. 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
Other Claims: Judicial Review
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 the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. 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.
23
If you are interested in securing pro bono representation for your appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding 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.