The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT D. ELDRIDGE, DOCKET NUMBER
Appellant, SF-0752-15-0597-I-1
v.
DEPARTMENT OF THE NAVY, DATE: April 5, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert D. Eldridge, FPO, AP, pro se.
Michelle Over, FPO, AP, 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 removal and found that he failed to prove his affirmative defense of
whistleblower reprisal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous application of the law to 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, we conclude that established any basis
under section 1201.115 for granting the petition for review. Therefore, we DENY
the petition for review. Except as expressly MODIFIED by this Final Order to
supplement the administrative judge’s analysis regarding whether the appellant’s
alleged protected disclosure was a contributing factor in his removal, we
AFFIRM the initial decision.
BACKGROUND
¶2 Prior to his removal, the appellant was a Political and Military Advisory
Officer with the agency, stationed in Okinawa, Japan. Initial Appeal File (IAF),
Tab 5 at 20, 49. The agency removed the appellant, effective May 1, 2015, based
on a charge of conduct prejudicial to the efficiency of the service. Id. at 20‑22,
30. The single supporting specification alleged that the appellant had turned over
an official security video to a civilian Japanese national and known member of
the media, in direct violation of an agency directive. Id. at 30.
¶3 The appellant filed a timely Board appeal challenging his removal and
raised an affirmative defense of whistleblower reprisal. IAF, Tab 1, Tab 7,
Tab 14 at 3‑4, Tab 20 at 13‑14. Specifically, the appellant alleged that he
engaged in protected whistleblowing when he informed the Chief of Staff of
another command, Colonel E.M., that he heard that the commanding general of
the Marine Corps Installation Pacific, Major General C.H., drove a vehicle while
potentially intoxicated. IAF, Tab 14 at 3, Tab 20 at 13.
3
¶4 The appellant withdrew his request for a hearing, and therefore, the
administrative judge adjudicated his appeal based on the written record. IAF,
Tab 9 at 1, Tab 22, Initial Decision (ID) at 1. The administrative judge issued an
initial decision sustaining the charge, ID at 6-7, and found that the agency
established a nexus between the charge and the efficiency of the service, ID
at 11-12, and that the penalty of removal was reasonable, ID at 15‑16. The
administrative judge further found that the appellant failed to prove his
affirmative defense of whistleblower reprisal. ID at 9‑11. He did not address
whether the appellant’s disclosure regarding Major General C.H. was protected,
but found that the appellant failed to prove that the disclosure was a contributing
factor in the decision to remove him. ID at 9.
¶5 The appellant has filed a petition for review of the initial decision, and the
agency has opposed the petition for review. Petition for Review (PFR) File,
Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the agency proved the charge.
¶6 The parties stipulated that the appellant: (1) had turned over the video to a
Japanese national in violation of the agency directive; and (2) was aware of and
understood the agency directive when he turned over the video. 2 IAF, Tab 12
at 4-5, ¶¶ 12, 17. Similarly, in the appellant’s response to the notice of proposed
removal, he admitted that he released the video to a Japanese national who was a
“known member of the media,” and that he had understood the intent of the
agency directive. IAF, Tab 5 at 26. On review, as he did below, the appellant
argues that the instructions in the agency directive were unclear or “blurred” as
2
The parties further stipulated that the agency directive was issued in response to a
prior incident where the appellant’s interaction with the media had resulted in a
negative news article. IAF, Tab 12 at 4‑5, ¶¶ 3‑5.
4
the result of lack of unity of command within the agency. 3 PFR File, Tab 1 at 5;
IAF, Tab 20 at 11-12. The administrative judge considered this argument, and
correctly found that the agency proved the charge. ID at 6‑7.
¶7 We agree with the administrative judge that the appellant’s stipulations and
admissions were sufficient to prove that the appellant engaged in the conduct
alleged in the charge. Id.; see 5 C.F.R. § 1201.63 (the parties may stipulate to
any matter of fact, and the stipulation will satisfy a party’s burden of proving the
fact alleged); see also Cole v. Department of the Air Force, 120 M.S.P.R. 640, ¶ 9
(2014) (finding that an appellant’s admission was sufficient to prove a charge).
¶8 We further agree with the administrative judge that the agency proved that
the appellant’s conduct was prejudicial to the efficiency of the service, as alleged
in the charge. ID at 7; see IAF, Tab 5 at 30. The appellant failed to comply with
the agency directive. As noted by the administrative judge, as a general rule, an
employee is required to comply with an agency order, even where the employee
may have substantial reason to question it. ID at 7; Pedeleose v. Department of
Defense, 110 M.S.P.R. 508, ¶ 16, aff’d, 343 F. App’x 605 (Fed. Cir. 2009).
Further, it is well established that refusal to follow instructions adversely affects
the efficiency of the service. 4 See Archerda v. Department of
Defense, 121 M.S.P.R. 314, ¶ 24 (2014) (finding that a charge of failure to follow
instructions relates directly to the efficiency of the service); Watson v.
Department of Transportation, 49 M.S.P.R. 509, 516 (1991) (finding that refusal
to follow proper instructions adversely affects the efficiency of the service), aff’d
as modified, 983 F.2d 1088 (Fed. Cir. 1992) (Table); Blevins v. Department of the
Army, 26 M.S.P.R. 101, 104 (1985) (finding that failure to follow instructions or
3
The appellant failed to identify, either below or on review, any instruction or action
by the agency that would have led him to believe that it was acceptable to turn over the
security video to a known member of the media. See PFR File, Tab 1 at 5; IAF, Tab 20
at 11‑12.
4
For this same reason, we also agree with the administrative judge that the agency
established a nexus between the charge and the efficiency of the service. See ID at 12.
5
abide by requirements affects an agency’s ability to carry out its mission, and is
connected to the efficiency of the service), aff’d, 790 F.2d 95 (Fed. Cir. 1986). In
sum, we discern no error in the administrative judge’s finding that the agency
proved the charge.
The administrative judge did not abuse his discretion in denying the appellant’s
motion to compel.
¶9 On review, the appellant contends that the agency failed to produce relevant
documents in response to discovery requests regarding his claims of
whistleblower reprisal. 5 PFR File, Tab 1 at 4‑8. We construe the appellant’s
allegations as a claim that the administrative judge abused his discretion in
denying the appellant’s motion to compel discovery. IAF, Tab 21.
¶10 Absent a showing of an abuse of discretion, the Board will not find
reversible error in an administrative judge’s rulings regarding discovery matters.
See Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 15 (2013). In
this appeal, we agree with the administrative judge that the appellant’s motion to
compel did not meet the requirements of 5 C.F.R. § 1201.73(c)(1). IAF, Tab 21
at 1‑2. In pertinent part, the motion did not include a copy of the appellant’s
discovery requests, the agency’s responses thereto, or a statement that the
appellant made a good faith effort to resolve the discovery dispute with the
agency and narrow the areas of disagreement. IAF, Tab 16; see 5 C.F.R.
§ 1201.73(c)(1). To date, it is unclear which specific discovery requests the
appellant contends that the agency failed to respond to. IAF, Tab 16; PFR File,
Tab 1.
5
The appellant also claims that the agency failed to produce these documents in
response to a Freedom of Information Act (FOIA) request that he submitted. PFR File,
Tab 1 at 5. However, the Board lacks jurisdiction to adjudicate the appellant’s
complaint that the agency did not comply with his FOIA request. See Cortright v.
Department of Transportation, 37 M.S.P.R. 565, 570 (1988); see also 5 U.S.C.
§ 552(a)(4)(B) (determining that U.S. district courts have jurisdiction to decide disputes
over an agency’s compliance with FOIA).
6
¶11 We further agree with the administrative judge that the appellant did not
make a good faith effort to resolve the discovery dispute with the agency prior to
filing his motion to compel. IAF, Tab 21 at 2. With its opposition to the
appellant’s motion to compel, the agency submitted an email that an agency
paralegal sent to the appellant, which explained how the appellant could clarify
certain discovery requests so that the agency would respond to them. IAF, Tab 19
at 7-8. The appellant did not clarify his discovery requests, or attempt to narrow
the areas of disagreement with the agency. IAF, Tab 16 at 3, Tab 19 at 5.
Instead, he filed a motion to compel, claiming that he did not have access to some
of the information that the agency requested and that he was “not confident that
[his] discovery requests would be answered in a timely manner.” IAF, Tab 16
at 3. For these reasons, we find that the administrative judge did not abuse his
discretion in denying the appellant’s motion to compel. 6 See 5 C.F.R.
§ 1201.74(a) (an administrative judge may deny a motion to compel discovery if a
party fails to comply with the requirements of 5 C.F.R. § 1201.73); see also
Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 73 (2012) (finding that an
administrative judge did not abuse her discretion in denying an appellant’s
motion to compel where the appellant did not supply a statement that the parties
had made a good faith effort to resolve a discovery dispute on their own).
The appellant failed to prove his affirmative defense of whistleblower reprisal.
¶12 On review, the appellant challenges the administrative judge’s finding that
he failed to prove his affirmative defense of whistleblower reprisal. 7 PFR File,
6
On review, the appellant requests that the Board compel the agency to respond to his
discovery requests, and provide a written statement from the Commanding General of
the III Marine Expeditionary Force explaining alleged actions that he took after the
agency decided to remove the appellant. PFR File, Tab 1 at 7‑8. The appellant’s
requests are denied.
7
The appellant has not claimed that the security video that he disclosed to a member of
the Japanese media was a protected disclosure. PFR File, Tab 1; IAF, Tab 14 at 3‑4,
Tab 20 at 13‑14.
7
Tab 1 at 1; see ID at 10‑11. The most common way for an appellant to
demonstrate that a protected disclosure was a contributing factor in an agency’s
personnel action is the “knowledge/timing” test. Shannon v. Department of
Veterans Affairs, 121 M.S.P.R. 221, ¶ 23 (2014). Under that test, an appellant
can prove the contributing factor element through evidence that the official taking
the personnel action knew of the whistleblowing disclosure and took the
personnel action within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel action. Id.
An appellant may establish imputed or constructive knowledge of his disclosures
by demonstrating that an individual with actual knowledge of the disclosure
influenced the official accused of taking the retaliatory action. McCarthy v.
International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 12 (2011),
aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert denied, 134 S. Ct. 386 (2013). In the
present case, the administrative judge found that the appellant failed to prove that
his alleged protected disclosure was a contributing factor in the decision to
remove him, because he failed to prove that the deciding official, M.K., had
knowledge of the appellant’s disclosure to Colonel E.M., or that anyone with
knowledge of the appellant’s disclosure influenced the deciding official’s
decision to remove him. ID at 10‑11.
¶13 The appellant contends on review that an email chain that the agency
allegedly provided to him during discovery demonstrates that Major General C.H.
influenced the deciding official’s decision to remove him. PFR File, Tab 1 at 4.
However, the appellant did not submit the email chain as part of the record in this
case. 8 We decline to consider the appellant’s arguments regarding this email,
8
On review, the appellant references the email chain as “Tab 1, Discovery Document
Request #7, Discovery Index, as provided by Agency.” PFR File, Tab 1 at 4. However,
no such document is contained in the record. The Board’s official record in an appeal
includes the hearing exhibits and pleadings that have been accepted into the record, the
official hearing record, if a hearing is held, and all orders and decisions of the judge
and the Board. See 5 C.F.R. § 1201.53(e).
8
raised in the first instance on review, because he has not demonstrated that they
are based on new and material evidence that was not previously available despite
his due diligence. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980) (finding that 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).
¶14 Alternatively, the appellant argues that it is unclear whether Major General
C.H. influenced the agency’s decision to remove him, because the agency did not
fully respond to his discovery requests. PFR File, Tab 1 at 4. However, as
discussed above, the appellant did not comply with the Board’s discovery
regulations and, as such, is responsible for the absence of evidence that he
contends would potentially support his affirmative defense. See Walton v.
Tennessee Valley Authority, 48 M.S.P.R. 462, 468 (1991) (finding that an
appellant was responsible for the absence of evidence to support his claims when
he failed to exercise due diligence in pursuing discovery).
¶15 Finally, the appellant argues that the administrative judge should have
assumed that Major General C.H. influenced the deciding official, because a
commanding general exercises influence over the agency. PFR File, Tab 1 at 4.
Even assuming that Major General C.H. generally exercised influence over the
agency, however, the record contains no evidence that Major General C.H. had
knowledge of the appellant’s disclosure to Colonel E.M. The appellant asserted
that he was unaware of any action that was taken as the result of his disclosure to
Colonel E.M. IAF, Tab 14 at 3. None of the documentation in the record
indicates that the deciding official was aware of the appellant’s alleged protected
disclosure to Colonel E.M, or was influenced by anyone who had knowledge of
the appellant’s alleged protected disclosure to Colonel E.M. For these reasons,
the administrative judge properly found that the appellant failed to prove that his
alleged protected disclosure was a contributing factor in the agency’s decision to
remove him under the knowledge/timing test. ID at 9‑11.
9
¶16 However, although the administrative judge confined his analysis to the
knowledge/timing test, this test is not the only way for an appellant to establish
the contributing factor element. See Daniels v. Department of Veterans
Affairs, 105 M.S.P.R. 248, ¶ 16 (2007). Where, as here, the appellant fails to
satisfy the knowledge/timing test, the Board will consider other evidence, such as
that pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether whistleblowing was personally directed at the
proposing or deciding officials, and whether those individuals had a desire or
motive to retaliate against the appellant. Stiles v. Department of Homeland
Security, 116 M.S.P.R. 263, ¶ 24 (2011). Therefore, we modify the initial
decision to supplement the administrative judge’s analysis regarding whether the
appellant’s alleged protected disclosure was a contributing factor in the agency’s
decision to remove him. Here, the agency’s sole charge was proven, the
appellant’s alleged whistleblowing was not directed personally at either the
proposing or deciding officials, and the appellant has provided no evidence that
either of those officials had a desire or motive to retaliate against him.
Accordingly, we conclude that the appellant failed to prove that his alleged
protected disclosure was a contributing factor in his removal.
The administrative judge properly found that the penalty of removal
was reasonable.
¶17 On review, the appellant argues that the administrative judge erred in
finding that the penalty of removal was reasonable. PFR File, Tab 1 at 4-6.
Where, as here, all of the agency’s charges, or its sole charge, have been
sustained, the Board will review an agency-imposed penalty only to determine if
the agency considered all of the relevant factors and exercised management
discretion within tolerable limits of reasonableness. Adam v. U.S. Postal
Service, 96 M.S.P.R. 492, ¶ 5 (2004), aff’d, 137 F. App’x 352 (Fed. Cir. 2005);
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). In doing so,
the Board must give due weight to the agency’s primary discretion in maintaining
10
employee discipline and efficiency, recognizing that the Board’s function is not
to displace management’s responsibility but to ensure that managerial judgment
has been properly exercised. Adam, 96 M.S.P.R. 492, ¶ 5. Thus, 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. Id.
¶18 In weighing the relevant factors, the deciding official considered that the
appellant had no history of official discipline and that the appellant alleged that
he suffered from health issues. IAF, Tab 5 at 23‑24. However, among other
things, the deciding official also considered the intentional nature of the
appellant’s actions, the high visibility and sensitivity of the appellant’s position,
the fact that the appellant’s actions had eroded the trust and confidence of agency
leadership, the notoriety of the appellant’s offense in light of the negative media
coverage that it caused, the clarity with which the appellant was on notice of the
directive that he was violating, and the appellant’s low potential for
rehabilitation. Id.
¶19 On review, the appellant contends that the deciding official failed to
consider his past high-level performance. PFR File, Tab 1 at 4‑5. The
administrative judge found that the deciding official indirectly acknowledged the
appellant’s performance when he stated that the appellant had “special trust and
access to” certain Marine Corps commanding generals, and was involved in
sensitive and confidential interactions. ID at 15; see IAF, Tab 5 at 23. We
discern no error in this finding. The appellant argues on review that an audio
recording that he provided in response to the agency’s discovery requests
demonstrates that the deciding official was unaware of his past accomplishments.
PFR File, Tab 1 at 4-5. However, the appellant did not submit this audio
11
recording as part of the record in this case. 9 See 5 C.F.R. § 1201.53(e).
Therefore, we have not considered the appellant’s arguments regarding the audio
recording, raised in the first instance on review. See Banks, 4 M.S.P.R. at 271.
¶20 The appellant also argues that the deciding official erred in concluding that
his potential for rehabilitation was low. PFR File, Tab 1 at 5‑6. Among other
things, he stresses that, in response to the agency’s inquiries, he was forthcoming
about releasing the security video. Id. at 5. However, although the appellant
admitted to releasing the security video, in his pleadings below, he attempted to
justify his actions, claiming that he set the record straight for the public, provided
important information to the Japanese Government, and that his actions served to
“restore and protect the honor and integrity” of the agency. IAF, Tab 20 at 4.
We agree with the administrative judge that the appellant’s attempts to justify his
actions reflects that he believed that he knew better than his superiors and that his
potential for rehabilitation was low. ID at 15‑16; see Brown v. Department of the
Air Force, 67 M.S.P.R. 500, 509 (1995) (finding that an employee showed no
potential for rehabilitation where he attempted to rationalize his actions and
failed to acknowledge that they were inappropriate).
¶21 Based on the foregoing, we find that the deciding official considered the
relevant Douglas factors and that the agency properly exercised management
discretion in imposing the penalty. Thus, under the circumstances in this case,
agree with the administrative judge that the penalty of removal was within the
9
On review, the appellant attempts to explain his failure to submit the audio recording,
claiming that because he was pro se, he did not understand that the agency would not
provide his discovery responses to the Board. PFR File, Tab 1 at 6. However, in the
acknowledgment order, the administrative judge specifically informed the parties that
they should not submit discovery responses to the Board, unless they were filing
motions to compel. IAF, Tab 2 at 2‑3. Furthermore, it is well established that a pro se
appellant may not escape the consequences of inadequate representation. See
Murdock v. Government Printing Office, 38 M.S.P.R. 297, 299 (1988).
12
tolerable limits of reasonableness. 10 ID at 15; see Rooney v. Department of
Agriculture, 30 M.S.P.R. 663, 664 (1986) (sustaining a penalty of removal for
conduct prejudicial to the best interests of the service) aff’d, 818 F.2d 876 (Fed.
Cir. 1987) (Table).
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 review of this final decision by the U.S. Court of Appeals for the
Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 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
10
We also have considered the appellant’s arguments on review that the administrative
judge failed to consider a list of several additional issues, including his alleged health
issues, Major General C.H.’s alleged misconduct, the “toxic command environment,”
and the effect that his removal would have on community relations. PFR File, Tab 1
at 6‑7. Having considered these arguments, we find that they present no basis to
disturb the initial decision. The administrative judge discussed the majority of these
issues in the initial decision, demonstrating that he considered them. ID at 6, 8‑11, 14.
Furthermore, an administrative judge’s failure to mention all of the evidence of record
does not mean that he did not consider it in reaching his decision. Marques v.
Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d
1062 (Fed. Cir. 1985) (Table). Finally, the appellant has failed to demonstrate that any
of the issues listed would alter the outcome in this matter.
13
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information about
the U.S. 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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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
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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.