The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 12
Docket No. SF-0752-15-0456-I-1
Cedric D. Clay,
Appellant,
v.
Department of the Army,
Agency.
March 2, 2016
Cedric D. Clay, Lacey, Washington, pro se.
Pamela J. Campbell and Stephen D. Funderburk, Joint Base
Lewis-McChord, Washington, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, AFFIRM the administrative judge’s findings
regarding the charges, VACATE the administrative judge’s findings concerning
nexus and the penalty, and REMAND the case to the regional office for further
adjudication in accordance with this Opinion and Order.
2
BACKGROUND
¶2 The agency removed the appellant on three charges: use of offensive
language in the workplace; inappropriate contact with a coworker; and failure to
follow instructions. Initial Appeal File (IAF), Tab 8, Subtabs 4e, 4h. The
appellant filed a timely appeal in which he argued that the agency discriminated
against him on the basis of his race and retaliated against him for filing a Board
appeal in 2012. 1 IAF, Tab 1. After holding a hearing, the administrative judge
affirmed the agency’s action, finding that it proved its charges and established the
required nexus between the appellant’s misconduct and the efficiency of the
service. IAF, Tab 25, Initial Decision (ID) at 3-12, 18. The administrative judge
further found that the deciding official properly weighed the relevant Douglas
factors and conscientiously considered the pertinent mitigating factors, such that,
under the circumstances presented, the penalty of removal was within the bounds
of reasonableness. ID at 18-21. She also found that the appellant failed to
establish his affirmative defenses of race discrimination and retaliation for
engaging in protected activity. ID at 12-16.
¶3 In his petition for review, the appellant cites a purported settlement offer as
evidence that the agency wrongfully removed him. 2 Petition for Review (PFR)
File, Tab 1 at 1. He asserts that his supervisor admitted to using offensive
language as well, argues that removing him for such behavior is therefore harsh,
and asks the Board to reconsider the penalty. Id. at 1-2. The appellant claims
that his alleged inappropriate physical contact with a coworker was instead an
honest accident, apologizes for bumping into the individual involved, and again
1
In that appeal, the Board reversed the agency’s prior removal action and reinstated the
appellant with back pay. Clay v. Department of the Army, MSPB Docket No. SF-0752-
12-0406-I-1, Initial Decision (July 24, 2012).
2
It is well settled that settlement offers are inadmissible on the merits of a case and are
entitled to no weight in determining whether a removal is appropriate. See, e.g.,
Cocchiara v. Department of Transportation, 18 M.S.P.R. 281, 283 (1983).
3
asks the Board to reconsider the penalty. Id. at 2-3. He also cites a coworker’s
statement of “that’s why we don’t want you here” as showing a conflict with that
individual, and resubmits a list of 14 “highlited [sic] incidents” from his appeal in
an apparent reiteration of his retaliation claim. Id. at 3-4; see IAF, Tab 22. The
agency responds in opposition to the appellant’s petition for review. PFR File,
Tab 3.
ANALYSIS
The agency met its burden of proving the charges but remand is required for
further adjudication of the appellant’s affirmative defense of reprisal.
¶4 We agree with the administrative judge that the agency proved its charges
by preponderant evidence. ID at 3-12. The administrative judge based her
findings significantly on hearing testimony, see id., and the Board must give
deference to an administrative judge’s credibility determinations when they are
based, explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing; the Board may overturn such determinations only when it
has “sufficiently sound” reasons for doing so, e.g., Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) .
¶5 The administrative judge found that the agency proved the first charge,
which comprised three specifications of using offensive language in the
workplace, finding the testimony before her was consistent with and
corroborative of the documentary evidence offered in support of the agency’s
charge and also was more credible than the appellant’s denial that he engaged in
the conduct at issue. ID at 3-7. The administrative judge acknowledged the
statement of the appellant’s coworker regarding the appellant’s presence in the
workplace that the appellant cites on review, PFR File, Tab 1 at 2, explicitly
noting the coworker’s admission that he “did not like working with the
appellant.” However, the administrative judge found that the appellant’s own
statements and hearing testimony essentially corroborated the coworker’s
testimony regarding the appellant’s use of offensive language in the workplace.
4
ID at 4-5. On review, the appellant offers no sufficiently sound reason to revisit
the administrative judge’s well-founded conclusions. Haebe, 288 F.3d at 1301.
¶6 As for the appellant’s contention that his supervisor used offensive
language, the record does not reflect that the appellant argued in his appeal below
that his supervisor did so. The Board generally will not consider an argument
raised for the first time in a petition for review absent a showing that it is based
on new and material evidence not previously available despite the party’s due
diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
Moreover, regarding this charge, the record reflects that the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on the issue of credibility. ID at 3-5; see, e.g., 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); Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶7 Likewise, the administrative judge found that the agency proved the second
charge, which comprised three specifications of inappropriate physical contact
with a coworker, on the strength and consistency of multiple witnesses’ sworn
statements and testimony, specifically determining that the reticence shown by
one of the witnesses concerned her apprehension about the negative consequences
of her testimony on the appellant’s employment, but that this reticence did not
reflect any doubt or uncertainty about the facts to which she testified. ID at 7-10.
Concerning the appellant’s argument that his inappropriate physical contact with
a coworker was instead an honest accident, the appellant again challenges the
administrative judge’s findings, PFR File, Tab 1 at 2-3, but he provides no basis
to disturb the administrative judge’s well-reasoned determination that the agency
established this charge by preponderant evidence through both documentary
evidence and live testimony, ID at 7-10; Crosby, 74 M.S.P.R. at 105-06;
Broughton, 33 M.S.P.R. at 359.
5
¶8 Based on the testimony before her, the administrative judge also found that
the agency proved the third charge, which comprised two specifications of failure
to follow instructions, rejecting the appellant’s contentions that he just had been
in the bathroom when he could not be found during his assigned duty hours, and
finding that, even though he was instructed not to leave confidential patient
records on the copier, he did so anyway. ID at 10-12. Again, we find that the
appellant provides nothing on review that would cause us to revisit the
administrative judge’s findings.
¶9 Although the appellant does not specifically address his affirmative
defenses in his petition for review, the list he provides at the end of his petition
touches on them, emphasizing, among other things, the fact that he filed an equal
employment opportunity complaint as well as a prior removal action reversed by
the Board. PFR File, Tab 1 at 3. As noted above, the administrative judge
rejected the appellant’s affirmative defense of race discrimination. ID at 12-15.
However, following the issuance of the initial decision in this appeal, the Board
issued Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), in which we
reaffirmed that, instead of the burden-shifting analysis employed by the
administrative judge to adjudicate the appellant’s affirmative defenses in this
matter, the Board would adhere to the test set forth in Mt. Healthy City School
District Board of Education v. Doyle, 429 U.S. 274, 287 (1977), in cases
involving discrimination or retaliation allegations under 42 U.S.C. § 2000e-16.
Savage, 122 M.S.P.R. 612, ¶ 50. Specifically, where an appellant asserts such an
affirmative defense, the Board first will inquire whether the appellant has shown
by preponderant evidence that the prohibited consideration was a motivating
factor in the contested personnel action. Id., ¶ 51. If the appellant meets that
burden, then we would inquire whether the agency has shown by preponderant
evidence that it still would have taken the contested action in the absence of the
discriminatory or retaliatory motive. Id. Given the administrative judge’s
finding, after a careful review of the record before her, that the appellant
6
provided no evidence that the agency took any of the actions cited in this appeal
based on his race, 3 ID at 15, we find that the result would be the same under
either the original or the post-Savage analysis. See Savage, 122 M.S.P.R. 612,
¶¶ 45-51; Browder v. Department of the Navy, 81 M.S.P.R. 71, ¶¶ 7-8 (1999),
aff’d, 250 F.3d 763 (Fed. Cir. 2000) (Table).
¶10 However, as to the appellant’s claim of retaliation for filing his prior Board
appeal, we note that he included a whistleblower reprisal claim in that prior
appeal. See Clay v. Department of the Army, MSPB Docket No. SF-0752-12-
0406-I-1, Initial Decision at 10-12 (July 24, 2012). His reprisal claim therefore
falls under 5 U.S.C. § 2302(b)(9)(A)(i), which makes it a prohibited personnel
practice “to take or fail to take, or threaten to take or fail to take, any personnel
action against any employee or applicant for employment because of the exercise
of any appeal, complaint, or grievance right granted by any law, rule, or
regulation, with regard to remedying a violation” of 5 U.S.C. § 2302(b)(8).
Under such circumstances, his retaliation claim in this appeal should be analyzed
under 5 U.S.C. § 1221(e), rather than under the general reprisal standard utilized
by the administrative judge here. ID at 15-17; see Alarid v. Department of the
Army, 122 M.S.P.R. 600, ¶¶ 12-15 (2015) (applying the 5 U.S.C. § 1221(e)
standard to an affirmative defense of reprisal under 5 U.S.C. § 2302(b)(9)(B)).
¶11 Upon remand, the administrative judge should apprise the appellant of his
burden of proof, afford the parties an opportunity to conduct discovery on the
issue, and hold a supplemental hearing if requested. She first must determine
whether the appellant established that he engaged in such protected activity, then
consider whether that activity was a contributing factor in the removal at issue in
this appeal. Alarid, 122 M.S.P.R. 600, ¶ 13. If the appellant establishes those
factors by preponderant evidence, then the administrative judge must consider
3
We see no reason to disturb this finding on review.
7
whether the agency met its burden by clear and convincing evidence that it would
have taken the same action in the absence of the appellant’s protected activity.
Id., ¶ 14. In the new initial decision, if the appellant fails to prove his affirmative
defense of reprisal, then the administrative judge may adopt her original findings
regarding nexus and the penalty.
ORDER
¶12 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.