The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELVIN CHAFFERDINE DUNIYA, DOCKET NUMBER
Appellant, DC-0752-15-0590-I-1
v.
AGENCY FOR INTERNATIONAL DATE: April 12, 2016
DEVELOPMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Melvin Chafferdine Duniya, Washington, D.C., pro se.
Harmony Wade, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency removed the appellant, a GS-13 Financial Management
Specialist, based on a single charge of failure to follow instructions. Initial
Appeal File (IAF), Tab 4 at 24-27. The deciding official found that, on the three
instances specified in the notice of proposed removal, the appellant refused to
follow his supervisor’s instructions to sign letters accepting the designation of
Contracting Officer’s Representative (COR) and to serve in that capacity to
manage two agency training contracts. Id. at 24.
¶3 The appellant filed a timely appeal, in which he argued that the agency’s
instructions were illegal because he lacked the proper certification. IAF, Tab 1.
He also argued that it would be impossible for him to perform the COR duties in
addition to his other duties. Id. The appellant further contended that his
supervisor lacked the requisite authority to designate CORs and that COR duties
were incompatible with his other duties as a vendor database administrator. IAF,
Tab 12 at 4-5; see IAF, Tab 4 at 29. He interposed affirmative defenses of
reprisal for whistleblowing and race discrimination. IAF, Tab 1, Tab 8 at 6-8.
After holding a hearing, the administrative judge affirmed the appellant’s
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removal. IAF, Tab 29, Initial Decision (ID). The administrative judge found that
the appellant conceded, in his response to the agency’s notice of proposed
removal, as well as in his appeal below, that he refused to obey the agency’s
instructions to sign the specified designation letters and to serve as the COR on
the contracts at issue, choosing instead to dispute the propriety of the orders for
him to do so. ID at 3; IAF, Tab 4 at 29-32.
¶4 To prove a charge of failure to follow instructions, an agency must establish
that the employee: (1) was given proper instructions; and (2) failed to follow the
instructions, regardless of the employee’s intent. E.g., Powell v. U.S. Postal
Service, 122 M.S.P.R. 60, ¶ 5 (2014). Even where there is substantial reason to
believe that an order is improper, an employee first must obey the order and then
challenge its validity, except in “extreme or unusual circumstances” in which the
employee would be placed in a clearly dangerous situation or which would cause
him irreparable harm. Pedeleose v. Department of Defense, 110 M.S.P.R. 508,
¶¶ 16-17, aff’d, 343 F. App’x 605 (Fed. Cir. 2009). This rule reflects the
fundamental management right to expect that its decisions will be obeyed and its
instructions carried out. Id., ¶ 16. Exceptions to the rule are not based on the
correctness of the employee’s objections to the order but apply in situations in
which there could be a significant adverse impact on the employee from
cooperation with an order that might be improper. Id., ¶ 18.
¶5 The administrative judge found the appellant’s argument that his supervisor
lacked the authority to designate him as a COR was specious because the record
instead indicated that his supervisor only had identified the appellant to the
proper Contracting Officer who then used her undisputed authority to designate
the appellant as a COR. ID at 4-5. Regarding the appellant’s certification to
perform COR duties, the administrative judge found that hearing testimony
credibly established that the appellant had taken sufficient continuing education
credits to maintain his certification, and further found that, even if he had not
properly maintained that credential, such failure would not be a proper basis on
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which to refuse to obey the instruction. ID at 5-8. The administrative judge
found that the agency established that it had sufficient safeguards to mitigate any
potential incompatibility between COR duties and the appellant’s duties
managing a vendor code database, noting the requirement for others to sign off on
the appellant’s actions and finding that, in any event, such potential conflict also
was not a proper basis on which to refuse to obey the instruction. ID at 8-9.
Similarly, the administrative judge found that the appellant’s contention that he
did not have enough time to perform COR duties as well as his vendor database
duties was again not a proper basis on which to refuse to obey the instruction, and
she concluded from the record as a whole that this was the actual reason
motivating the appellant. ID at 9-10. Thus, the administrative judge found that
the agency established by preponderant evidence that the appellant engaged in the
specified misconduct and she sustained the charge. ID at 10.
¶6 The administrative judge further found that the appellant failed to establish
his affirmative defenses. ID at 10-16. The appellant essentially claimed that the
proposing and deciding officials had collaborated with a previous supervisor to
continue that individual’s alleged practice of racial discrimination against the
appellant. ID at 11; IAF, Tab 13. However, despite her repeated entreaties for
him to do so, the administrative judge found that the appellant failed to present
any evidence or elicit any testimony, save for his own, in support of his theory
that the officials involved were doing the bidding of the appellant’s prior
supervisor or that the officials themselves, including the prior supervisor, had any
motivation to discriminate against him on the basis of his race. ID at 11-12.
¶7 The administrative judge also found that the appellant failed to establish his
affirmative defense of reprisal for protected whistleblowing activity. ID at 12-16.
First, she found that, even though the appellant actually disclosed a violation of
an agency rule regarding the allocation of office space, because he disclosed it as
an example of preferential treatment towards a coworker of another race, and was
unaware at the time of his disclosure that such a rule existed, he did not have a
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reasonable belief that he was disclosing a violation of a rule and therefore
engaging in protected whistleblowing when he made the disclosure. ID at 15.
Nevertheless, the administrative judge went on to find that, even if the appellant
had established that he had a reasonable belief that he was disclosing a violation
of a rule at the time of his disclosure, he failed to prove that his alleged
disclosure was a contributing factor in the agency’s removal action. ID at 15.
Again, despite the appellant’s opportunity at the hearing to question the officials
involved under oath, and the administrative judge’s repeated invitations for the
appellant to offer evidence in support of a retaliatory motive, the administrative
judge found that the appellant “did not assert, much less prove, any facts that
connect his disclosure with the relevant officials’ motives to either propose or
effect his removal.” ID at 16.
¶8 Regarding the penalty, the administrative judge found that the deciding
official considered all the relevant Douglas factors, that the penalty did not
exceed the bounds of reasonableness, and that the appellant’s misconduct bore a
nexus with the efficiency of the service. ID at 16-19. She also noted that the
agency had twice employed progressive discipline in the previous 2 years for the
same misconduct implicated here and had specifically warned the appellant that
he would receive additional discipline for his continued failure to follow
instructions. ID at 18.
¶9 In his timely filed petition for review, the appellant reasserts his argument
that the instruction at issue was not a proper one, and he reiterates his affirmative
defenses. Petition for Review (PFR) File, Tab 1. He also argues that the
administrative judge abused her discretion concerning discovery and witnesses
and submits what he claims is new and material evidence. Id. The agency
responds in opposition. PFR File, Tab 5.
¶10 As for the merits of the appellant’s arguments, we agree with the
administrative judge that none of the reasons why the appellant claims that he
refused the instructions at issue show that obeying the instruction would have
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placed him in a clearly dangerous situation, or caused him irreparable harm. See
Pedeleose, 110 M.S.P.R. 508, ¶¶ 16-17. The appellant’s arguments regarding
whether the agency correctly designated him as a COR and the currency of his
COR certification both implicate the validity of his actions in that role, and, as he
indicates on review, a COR acting in the absence of such authority “may result in
an unauthorized/informal commitment” under Federal acquisition regulations.
PFR File, Tab 1 at 12. However, Federal Acquisition Regulation (FAR) 1.602-3,
submitted by the appellant as part of his case below, specifically provides for the
ratification of such unauthorized commitments. IAF, Tab 14, Exhibit (Ex.) 10
at 1. When the pertinent regulations provide for such a remedy, it cannot be said
that the harm from such an unauthorized commitment is irreparable. See
Pedeleose, 110 M.S.P.R. 508, ¶¶ 16-17. As the administrative judge noted, the
record contains no evidence indicating what penalty might be imposed on an
improperly credentialed COR, and FAR 1.601(a) places the ultimate
responsibility for the lawful administration of Federal contracts on the head of the
agency, not the COR. ID at 8; IAF, Tab 14, Ex. 10 at 1. Moreover, the appellant
has failed to show, and we perceive no likely circumstance under which he could
show, that obeying the instructions at issue would have put him in immediate
danger or caused irreparable harm. The same is true of the appellant’s assertions
that it would be impossible for him to perform the COR duties in addition to his
other duties and that such duties were incompatible with his management of the
vendor database.
¶11 Thus, we agree with the administrative judge that the appellant failed to
establish that obeying the instructions at issue would have either placed him in a
clearly dangerous situation or caused him irreparable harm. ID at 8-10; see
Pedeleose, 110 M.S.P.R. 508, ¶¶ 16-17. The appellant identifies nothing on
review that would cause us to revisit the administrative judge’s findings regarding
the charged misconduct. Nor has the appellant identified anything on review that
would cause us to revisit the administrative judge’s findings regarding the nexus
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of the appellant’s misconduct with the efficiency of the service, or the
reasonableness of the penalty, especially considering the progressive discipline
the appellant previously received for the same misconduct, and his assertion
before the administrative judge that if he returned to work, he would continue to
refuse to follow the instruction at issue, which shows a lack of remorse on his
part, and indicates a lack of rehabilitation potential. ID at 18-19; IAF, Tab 4
at 39-42, 48-50.
¶12 Regarding his affirmative defenses, the appellant reiterates his arguments
that agency officials discriminated against him, by “bullying [him] through work
assignments.” PFR File, Tab 1 at 15. However, his conclusory presentation on
review, id. at 14-15, provides no reason to revisit the administrative judge’s
conclusions, which she based primarily on the testimony before her, ID at 10-12.
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.
Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) . The
appellant fails to identify such reasons. In this regard, the initial decision reflects
that the administrative judge considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on issues of credibility.
Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
(1987).
¶13 Regarding his whistleblowing defense, the appellant challenges the
administrative judge’s conclusion that he lacked a reasonable belief that he was
disclosing a violation of a rule because, even though he acknowledges that he was
unaware of the specific rule in question, once he learned of the rule he “knew that
he would be retaliated against.” PFR File, Tab 1 at 15. Given the administrative
judge’s finding that the appellant also failed to demonstrate that his purported
disclosure was a contributing factor in the removal action, we agree that, even if
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the appellant demonstrated a reasonable belief that he was disclosing a violation
of an agency rule regarding the allocation of office space, he failed to establish
his affirmative defense of whistleblowing by preponderant evidence. ID at 15-16.
The proposing and deciding officials both testified that they were unaware of the
appellant’s purported disclosure and, despite his opportunity to question all the
relevant agency officials on this matter, the appellant failed to elicit any evidence
to the contrary, or any evidence of a conspiracy between those officials. ID at 16.
Moreover, to the extent that the appellant is arguing that agency officials
committed a prohibited personnel practice proscribed by 5 U.S.C.
§ 2302(b)(9)(D), removing him for refusing to obey an order that would require
him to violate a law, “the right-to-disobey provision at section 2302(b)(9)(D)
extends only to orders that would require the individual to take an action barred
by statute.” Rainey v. Department of State, 122 M.S.P.R. 592, ¶ 11 (2015).
Because, as noted above, the appellant alleged herein that the agency’s request
would cause him to violate a FAR, not a statute, 5 U.S.C. § 2302(b)(9)(D) is not
applicable to the circumstances at issue.
¶14 Next, the appellant claims that the administrative judge abused her
discretion in ruling on discovery, PFR File, Tab 1 at 16, but the record does not
indicate that the appellant ever filed a motion to compel discovery below. His
failure to file a motion to compel precludes him from raising a discovery dispute
for the first time on review. See, e.g., Szejner v. Office of Personnel
Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed. Cir.
2006). In any event, even if the appellant had filed a motion to compel, he
has not shown how the information he sought to discover would have changed the
result in this appeal. See id.
¶15 The appellant also contends that the administrative judge abused her
discretion regarding witnesses. PFR File, Tab 1 at 16-18. The administrative
judge has wide discretion under 5 C.F.R. § 1201.41(b)(8), (10) to exclude
witnesses where it has not been shown that their testimony would be relevant,
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material, and nonrepetitious. Franco v. U.S. Postal Service, 27 M.S.P.R. 322,
325 (1985). In the prehearing conference summary, following her rulings on the
parties’ witness requests, the administrative judge instructed the parties that her
rulings therein would become final unless they filed timely objections. IAF,
Tab 15 at 10. Although the appellant filed a motion for the administrative judge
to reconsider one of the witnesses she excluded, which the administrative judge
denied, IAF, Tabs 18-19, he does not allege on review that the administrative
judge improperly did so. Other than that motion, which did not involve any of
the witnesses identified in his petition for review, the record does not reflect that
the appellant objected to the administrative judge’s rulings on witnesses. The
appellant’s failure to timely object to the administrative judge’s rulings on
witnesses below precludes him from doing so on petition for review. Tarpley v.
U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). Moreover, the appellant’s
arguments on review do not show that any of the testimony he contends that he
would have elicited from any of the witnesses, including those that the
administrative judge admitted or those that the appellant alleges she improperly
excluded, could have established that the agency’s instruction would have placed
him in danger or would have caused him irreparable harm.
¶16 As for the documents the appellant submits on review, under 5 C.F.R.
§ 1201.115, the Board will not consider evidence submitted for the first time with
the petition for review absent a showing that it was unavailable before the record
was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980). The appellant makes no such showing, 2 and the
documents themselves appear to date from before the close of the record below.
2
The appellant also contends that the administrative judge granted the agency’s motion
to reopen the record, but denied his motion to do the same. PFR File, Tab 1 at 18. The
record reflects, however, that the record was not closed when the appellant sought to
reopen it, and the administrative judge denied the appellant’s motion as unnecessary,
specifically reassuring him that he would have the opportunity to submit additional
evidence. IAF, Tab 22 at 2.
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PFR File, Tab 1 at 21, 26, 32, 36; ID at 19. Moreover, because the documents
address either the certification of CORs or the appellant’s training record, PFR
File, Tab 1 at 21-36, and we agree with the administrative judge that, regardless
of the appellant’s COR certification status, he failed to establish that obeying the
instruction would have placed him in a clearly dangerous situation, or would have
caused him irreparable harm, ID at 8, the documents are not relevant to the
charged misconduct in this matter.
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
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 U.S. 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
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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 U.S. 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 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 U.S. 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
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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 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 your 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
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.