holding that, where more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge
How later courts described this case
- holding that, where more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge
- finding that a reassignment without loss of grade or pay is not an appealable action
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY C. KNIGHT, DOCKET NUMBER
Appellant, SF-0752-15-0309-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: April 27, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bobby R. Devadoss and Stephanie Bernstein, Esquire, Dallas, Texas, for
the appellant.
Kerri E. Bandics, Esquire, San Francisco, California, 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 the appellant’s 30-day suspension. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regulation or the 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. However, we MODIFY the initial
decision as stated in ¶¶ 21-27 below as to the administrative judge’s analysis of
the appellant’s whistleblower defense. Except as expressly MODIFIED by this
Final Order, we AFFIRM the initial decision.
¶2 At all relevant times, the appellant was a GS-12 District Ranger for the
agency. Initial Appeal File (IAF), Tab 9 at 31, Tab 11 at 4. This is a supervisory
and managerial position whose duties involve working with a team to administer
an area of National Forest land. IAF, Tab 11 at 28-33. On November 6, 2012,
the agency proposed the appellant’s removal based on one charge of “off-duty
misconduct” (five specifications) and one charge of “inappropriate use of
government resources” (four specifications). The charges stemmed from six
inappropriate emails and one inappropriate text message that the appellant sent to
a coworker with whom he had had a sexual relationship, as well as one
inappropriate email that the appellant accidentally sent to another coworker. IAF,
Tab 10 at 67-69. After the appellant responded, the deciding official issued a
decision sustaining the charges, but mitigating the penalty to a 30-day suspension.
IAF, Tab 9 at 32-43.
¶3 The appellant filed a formal equal employment opportunity (EEO)
complaint, alleging among other things that his suspension was in reprisal for
prior EEO activity. IAF, Tab 1 at 11-12. When the agency returned a finding of
3
no discrimination, the appellant filed a Board appeal. IAF, Tab 1. He waived his
right to a hearing. IAF, Tab 27. After the close of the record, the administrative
judge issued an initial decision affirming the suspension. IAF, Tab 33, Initial
Decision (ID) at 1, 21. She sustained both charges and all but one of the
specifications and found that the agency established a nexus between the
appellant’s misconduct and the efficiency of the service. ID at 4-11. The
administrative judge also considered the appellant’s affirmative defenses of due
process violation, reprisal for EEO activity, and whistleblower retaliation, but she
found that the appellant failed to prove them. ID at 11-18. Finally, the
administrative judge found that the deciding official considered the pertinent
penalty factors and that the 30-day suspension did not exceed the tolerable limits
of reasonableness. ID at 18-21.
¶4 The appellant has filed a petition for review, disputing many of the
administrative judge’s factual findings, particularly regarding her penalty
analysis. Petition for Review (PFR) File, Tab 1 at 1-21. He also argues that he is
aware of new and material evidence about similarly situated employees that the
agency withheld during discovery. Id. at 22-23. The agency has filed a response.
PFR File, Tab 3.
The appellant’s discovery dispute is not properly before the Board.
¶5 On review, the appellant alleges that the agency withheld evidence that
would have undermined the credibility of one of its witness’s written statements.
PFR File, Tab 1 at 6. He also alleges that the agency was aware of three similarly
situated employees whom the agency treated less harshly, but it failed to provide
information about these employees as requested during discovery. Id. at 11, 15,
22-23.
¶6 We find that appellant is essentially raising a discovery dispute for the first
time on petition for review. The appellant’s failure to file a motion to compel
below precludes him from attempting to do so now. See Szejner v. Office of
Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217
4
(Fed. Cir. 2006). Furthermore, although the appellant alleges that the comparator
evidence is “new and material,” he indicates that he was aware of this evidence
before the record closed. PFR File, Tab 1 at 15, 22-23. Because the appellant
was aware that this evidence existed and did not file a motion to compel, we find
that it does not fit the definition of “new.” See 5 C.F.R. § 1201.115(d) (“To
constitute new evidence, the information . . . must have been unavailable despite
due diligence when the record closed.”).
The agency proved Charge 1.
¶7 The facts underlying the charges are largely undisputed and are set forth
more fully in the initial decision. ID at 2-8. Briefly, and by way of background,
the appellant and his coworker, C.B., a Budget Officer not normally in his chain
of command, began a consensual sexual relationship in December 2012. 2 IAF,
Tab 10 at 91, 107, 112, 121. They took a hiatus during March 2013, and then
resumed their relationship in April. Id. at 91, 107-08, 114-18. On June 24, 2013,
C.B. ended the relationship permanently. Id. at 91, 108, 119. On June 27 and 29,
2013, C.B. informed multiple agency officials that the appellant was engaging in
stalking and harassing behavior, including sending her inappropriate emails and
text messages, that she feared for her safety, and that for these reasons, she was
stepping down from her temporary role as Forest Supervisor. Id. at 91-92,
105-06, 123-24.
¶8 On July 9, 2013, the agency launched an investigation into C.B.’s
allegations. Id. at 89. During the investigation, the agency uncovered the text
message and six of the emails at issue. Id. at 77-86, 96-97. The seventh email
was sent after the investigation was concluded. Id. at 68-69, 87-88. As explained
above, the administrative judge found that all of these communications except for
2
During the period in question, the appellant and C.B. rotated on a monthly basis with
other employees as acting Forest Supervisor. IAF, Tab 30 at 27. Whichever employee
was acting at any given time served as immediate supervisor of the others in the
rotation. Id.
5
one constituted actionable misconduct, and she therefore sustained both charges.
ID at 4-11; see Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed.
Cir. 1990) (holding that, where more than one event or factual specification
supports a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge).
¶9 On review, the appellant appears to argue that the agency failed to prove
Charge 1 because none of the communications at issue in that charge constituted
actionable misconduct. PFR File, Tab 1 at 1-3. Because proof of Charge 1 and
the issue of nexus are intertwined, we will address the appellant’s arguments
below. For the reasons discussed below and explained in the initial decision, we
agree with the administrative judge that Charge 1, Specifications 1 through 4
constitute actionable misconduct and that the agency therefore proved its charge
of “off-duty misconduct.” Infra ¶¶ 14-19; ID at 4-6.
The agency proved Charge 2.
¶10 The administrative judge sustained Charge 2, “inappropriate use of
government resources,” finding that the four emails at issue originated from the
appellant’s Government account and violated two agency regulations concerning
use of Government telecommunications resources. ID at 6-8. On review, the
appellant argues that the administrative judge identified only two emails that he
sent from his Government account, rather than four, as the administrative judge
stated in her initial decision. PFR File, Tab 1 at 5. We disagree. The notice of
proposed removal identified four inappropriate emails that originated from the
appellant’s Government account, IAF, Tab 10 at 68-69, 82-88, and the
administrative judge discussed all four of them in her initial decision, ID at 7-8.
¶11 The appellant also disputes the administrative judge’s finding that these
emails violated the agency’s use policy. PFR File, Tab 1 at 4-5. He argues that
one of the agency regulations at issue only prohibits the use of “office
equipment” for activities that would violate anti-discrimination statutes and that
he did not use “office equipment” to send the emails at issue or use any
6
discriminatory language. Id. at 4; IAF, Tab 11 at 74. We disagree with the
appellant’s interpretation of this regulation. First, we find that “office
equipment” under the regulation explicitly includes email. IAF, Tab 11 at 73.
Second, although the appellant is correct that the examples listed of “illegal,
inappropriate, or offensive activities” consist primarily of discriminatory speech,
the list is explicitly nonexhaustive. Id. at 74. We therefore find that, on its face,
the regulation also prohibits offensive speech that is not discriminatory. The
appellant further argues that there is no evidence that anyone was actually
offended by these emails. PFR File, Tab 1 at 5. The administrative judge,
however, already addressed this contention, finding that the appellant himself
admitted that the employee whom he called an “idiot” in one email was offended,
and in any event, the regulation prohibits emails that are “inappropriate or
offensive.” ID at 7-8. We agree with the administrative judge. Furthermore, we
find that an email does not actually have to offend anyone to be considered
inherently offensive.
¶12 The appellant argues that the second agency regulation at issue only applies
to employees “acting in an official capacity,” and he was not acting in an official
capacity when sending any of the emails listed under Charge 2. PFR File, Tab 1
at 4-5; IAF, Tab 11 at 44. We agree with the appellant’s interpretation of this
regulation, and we also agree that it is debatable whether he was acting in an
“official capacity” when he sent some of the emails at issue. However, we find it
indisputable that the appellant was acting in an official capacity when he sent the
email discussed in Charge 2, Specification 3 pertaining to the processing of his
time sheet. IAF, Tab 10 at 68, 85-86. In any event, because all of the emails
were inappropriate and were prohibited by the other agency regulation as
discussed above, we agree with the administrative judge that the agency proved
its charge of “inappropriate use of government resources.” ID at 10.
¶13 Finally, the appellant argues that the administrative judge found that the
emails underlying Charge 2, Specifications 2 and 3 interfered with Government
7
business but that the agency did not charge him with interfering with Government
business. PFR File, Tab 1 at 5-6. He further argues that he did not actually
interfere with Government business, and he downplays the offensiveness of his
emails. Id. at 6. We agree with the appellant that he was not charged with
interfering with Government business. However, regardless of whether the
appellant’s emails interfered with Government business, we find that the
administrative judge properly sustained Charge 2 for the reasons discussed above.
The agency proved that the charged misconduct bore a nexus to the efficiency of
the service.
¶14 An agency may take an adverse action under 5 U.S.C. chapter 75 “only for
such cause as will promote the efficiency of the service.” 5 U.S.C. § 7513(a). In
this case, the emails and text message at issue in Charge 1 were sent from the
appellant’s personal accounts while he was off-duty, whereas the emails at issue
in Charge 2 were sent from his Government account. 3 IAF, Tab 10 at 67-69. The
administrative judge conducted separate nexus analyses for the two charges. ID
at 9-11.
¶15 Regarding Charge 1, the administrative judge correctly noted that an agency
may establish nexus between off-duty misconduct and the efficiency of the
service by: (1) a rebuttable presumption in certain egregious circumstances;
(2) preponderant evidence that the misconduct adversely affects the appellant’s or
coworkers’ job performance or the agency’s trust and confidence in the
appellant’s job performance; or (3) preponderant evidence that the misconduct
interfered with or adversely affected the agency’s mission. ID at 9; Kruger v.
Department of Justice, 32 M.S.P.R. 71, 74 (1987). She found that the agency
established nexus under the second method, i.e., by showing that the appellant’s
3
It is not clear whether the appellant was in duty status when he sent the emails
underlying Charge 2, but we find that this information would be immaterial to the
analysis.
8
misconduct adversely affected C.B.’s job performance as well as the agency’s
trust and confidence in him to perform his duties. ID at 9-10.
¶16 On review, the appellant argues that the agency failed to prove nexus
because his off-duty conduct was not criminal in nature and that a presumption of
nexus only arises in cases of egregious criminal conduct. 4 PFR File, Tab 1 at 3-4.
To the extent that the appellant is arguing that noncriminal off-duty misconduct
never bears a nexus to the efficiency of the service, we disagree. The Board has
found on multiple occasions that agencies established nexus between noncriminal,
off-duty misconduct and the efficiency of the service. See Doe v. Department of
Justice, 113 M.S.P.R. 128, ¶¶ 20-21, 34 (2010). Moreover, as explained above,
the administrative judge in this case did not rely upon a presumption of nexus.
Rather, she found that the emails and message that the appellant sent from his
personal accounts adversely affected C.B.’s job performance, as well as
management’s trust and confidence in the appellant’s ability to perform his job.
ID at 10-11.
¶17 Regarding C.B.’s job performance, the appellant argues that the emails did
not “greatly upset” her as the administrative judge found, that they did not affect
her job performance, and that she did not actually stand down as acting Forest
Supervisor. PFR File, Tab 1 at 1-3, 6. He further argues that C.B.’s statements
in support of these allegations postdated the agency’s suspension decision. PFR
File, Tab 1 at 6; IAF, Tab 30 at 26-30. As an initial matter, we find it immaterial
that C.B.’s statement postdates the agency’s suspension decision. It is
well settled that the Board’s review is not limited to the administrative record
before the agency; rather, the Board is mandated by statute to consider de novo
4
The appellant cites multiple circuit court decisions in support of his argument. PFR
File, Tab 1 at 3. However, the only circuit court with controlling authority over the
Board is the U.S. Court of Appeals for the Federal Circuit. Fairall v. Veterans
Administration, 33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987). To the extent
that these decisions from other circuits are contrary to our established precedent, we
find them unpersuasive.
9
all the relevant evidence presented by both parties. Zeiss v. Veterans
Administration, 8 M.S.P.R. 15, 17-18 (1981). As for whether the appellant’s
conduct “greatly” upset C.B., we find the administrative judge’s choice of this
adjective to be of little importance. We find that the nature of the
communications underlying Charge 1 are such that a reasonable person could be
upset by them, IAF, Tab 10 at 77-80, and the record shows that C.B. was, in fact,
upset by them enough for her to alter her work arrangements by teleworking for a
time, enlisting other employees to attend meetings and conduct budget-related
business with the appellant in her stead, and modifying the ways in which she
communicated with the appellant, IAF, Tab 30 at 30. As for whether C.B.
actually stepped down as acting Forest Supervisor, the administrative judge did
not so find, and we find that this is also immaterial to the nexus issue. It is
undisputed that C.B. informed her supervisor that she wished to step down, thus
demonstrating another way in which the appellant’s off-duty misconduct affected
the workplace. Id.
¶18 Regarding the agency’s loss of trust and confidence in the appellant, the
administrative judge found that the deciding official had a valid basis for concern
about the appellant’s ability to “control his emotions and communicate in a
professional manner if one of his employees or a member of the public crosses
him.” ID at 10; IAF, Tab 30 at 24. The appellant argues that the administrative
judge erred in finding that his “supervisors” lost trust and confidence in him
because he has only one supervisor, and it is not the deciding official. PFR File,
Tab 1 at 7; ID at 10. Even so, we find that this is immaterial because the
deciding official’s declaration is sufficient to demonstrate that agency
management lost confidence in the appellant, which is all that is required for a
showing of nexus. See Kruge, 32 M.S.P.R. at 74; see also Batara v. Department
of the Navy, 123 M.S.P.R. 278, ¶ 7 (2016) (determining that a supervisor’s
opinions are insufficient to overcome the agency’s judgment concerning the
seriousness of the misconduct and the appropriateness of the agency-imposed
10
penalty). The appellant also argues that his final performance evaluation for the
period encompassing March through September 2013 belies the agency’s
supposed concerns about his ability to perform. PFR File, Tab 1 at 7-8.
However, even if the agency’s concerns about the appellant’s ability to perform
in the future have not borne out, we find that this does not undermine the
legitimacy of those concerns. Finally, the appellant argues that the administrative
judge erred in finding that he was not subject to on-site supervision. PFR File,
Tab 1 at 7; ID at 10. Although this may be true, we find that it does little to
detract from the administrative judge’s nexus analysis overall. For the reasons
explained in the initial decision, we agree with the administrative judge that the
agency established a nexus between the off-duty misconduct underlying Charge 1
and the efficiency of the service. ID at 9-10.
¶19 As to Charge 2, the administrative judge found the issue of nexus to be
self-evident, and so do we. ID at 10.
The appellant did not prove his affirmative defense of retaliation for equal
employment opportunity activity.
¶20 The administrative judge found that the appellant failed to prove this
affirmative defense because there was no evidence that either the proposing or
deciding official was aware of his prior EEO activity. ID at 12. On review, the
appellant argues that the proposing and deciding officials must have known about
his EEO activity because of agency policy and their “statutory duty to know all of
the complaints that were affiliated with their actions.” PFR File, Tab 1 at 8. The
appellant, however, has not identified the statutes or provided any evidence of
these purported agency policies. We find an inadequate basis to infer that these
officials actually knew of the appellant’s prior EEO activity contrary to their
declarations. IAF, Tab 30 at 22-23. We therefore agree with the administrative
judge that the appellant did not prove his affirmative defense of retalation for
EEO activity. ID at 11-12; see Newberry v. U.S. Postal Service, 49 M.S.P.R. 348,
354 (1991).
11
The agency proved by clear and convincing evidence that it would have
suspended the appellant notwithstanding his protected disclosure.
¶21 The administrative judge found that the appellant made a protected
disclosure in March 2013, when the appellant had “heated discussions” with the
Forest Fire Management Officer and Deputy Forest Fire Management Officer
(DFFMO) about firefighting tactics. ID at 13-15; IAF, Tab 9 at 50, Tab 29 at 27.
Specifically, the appellant told these individuals that the “maximum suppression”
tactic that the agency was considering was “extremely hazardous” to the safety of
firefighters. IAF, Tab 9 at 50, Tab 29 at 27. The administrative judge found that
this disclosure went beyond mere policy disagreement and concerned a matter
that the appellant reasonably believed constituted a substantial and specific
danger to public health and safety. ID at 14-15. The administrative judge also
found that the deciding official became aware of the appellant’s disclosure during
his November 25, 2014 oral reply to the notice of proposed removal. ID at 16;
IAF, Tab 10 at 4. Thus, the appellant established through the knowledge/timing
test that his disclosure was a contributing factor in the suspension. ID at 16; see
5 U.S.C. § 1221(e)(1). Nevertheless, considering the factors set forth in Carr v.
Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), the
administrative judge found that the agency proved by clear and convincing
evidence that it would have suspended the appellant notwithstanding his
disclosure. ID at 17-18.
¶22 In determining whether an 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 following factors: 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 the 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 situated.
Carr, 185 F.3d at 1323. On review, the appellant argues that the administrative
12
judge erred in finding that the agency’s evidence in support of the suspension was
strong. Specifically, he argues that the administrative judge erred in finding that
his “supervisors” lost trust in his ability to perform. PFR File, Tab 1 at 10; ID
at 17. We acknowledge that the proposing and deciding officials may not have
been in the appellant’s direct supervisory chain and that there is otherwise no
evidence that anyone in his supervisory chain personally lost trust and confidence
in him. However, as explained above, we find that the record is sufficient to
establish that the proposing and deciding officials had legitimate misgivings
about the appellant’s ability to perform his duties appropriately in the future.
Supra ¶ 18. Therefore, we find that the appellant’s argument detracts very little
from the administrative judge’s findings on this issue.
¶23 Regarding the second Carr factor, the strength of retaliatory motive, the
appellant argues that the administrative judge failed to consider that the deciding
official was not the only one who was aware of his disclosure. The proposing
official knew about it as well, as did the DFFMO, who also played a role in the
agency’s action. PFR File, Tab 1 at 8-9; IAF, Tab 26 at 221. We agree with the
appellant that these individuals were aware of his disclosure and that they were
both involved in his suspension—the proposing official in proposing the
appellant’s removal, and the DFFMO in initially referring C.B.’s complaints
about the appellant to the agency’s law enforcement and Office of Civil Rights.
IAF, Tab 10 at 124-25. We find that the roles and motivations of these
individuals are relevant to the clear and convincing evidence issue and that they
must be considered in a proper evaluation of the evidence. See McCarthy v.
International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 31 (2011)
(explaining that, in evaluating the clear and convincing evidence issue, the Board
will consider any motive to retaliate on the part of the agency official who
ordered the action, as well as any motive to retaliate on the part of other agency
officials who influenced the decision), aff’d, 497 F. App’x 4 (Fed. Cir. 2012); see
also Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012)
13
(holding that the Board must evaluate all the pertinent evidence in determining
whether an element of a claim or defense has been adequately proven).
¶24 Next, we find that the DFFMO had a very strong motive to retaliate against
the appellant. He was one of the individuals with whom the appellant engaged in
the “heated discussions” at issue, he apparently disagreed with the appellant’s
position, and the appellant’s disclosure directly implicated the DFFMO’s duties
and responsibilities. Furthermore, as the appellant argues on review, on June 10,
2014, shortly after the disclosure, a firefighter using maximum suppression
tactics died while fighting a forest fire under the DFFMO’s authority. 5 PFR File,
Tab 1 at 9; IAF, Tab 6 at 125, Tab 24 at 6. As for the proposing official, we find
that he had little, if any, motive to retaliate. Although the record shows that the
proposing official was aware that the appellant made recommendations of some
type regarding firefighting, which the agency ultimately rejected, there is no
indication that he knew or was in any way concerned about the particulars of the
appellant’s disclosure. IAF, Tab 26 at 221, Tab 30 at 22. Moreover, the
proposing official’s position during the relevant time period was Deputy Regional
Forester for Operations, and there is no indication that the proposing official or
his duties and responsibilities were directly implicated in the disclosure or the
subsequent death of the firefighter. IAF, Tab 30 at 21.
¶25 The appellant also disputes the administrative judge’s finding that the
deciding official had little motive to retaliate. PFR File, Tab 1 at 10; ID at 17. In
particular, the appellant argues that the deciding official was formerly the Deputy
Regional Forester for Fire and Aviation and “actually formulated and guided” the
maximum suppression policy. PFR File, Tab 1 at 10. The appellant, however,
5
The appellant also alleges that five more firefighters have died while using maximum
suppression tactics during the pendency of this appeal. PFR File, Tab 1 at 9-10.
Although this fact might strengthen the administrative judge’s finding that the
appellant’s disclosure was protected, we find that it has no bearing on whether the
agency proved by clear and convincing evidence that it would have suspended the
appellant when it made its decision.
14
has not cited any specific evidence in support of his allegation apart from his
EEO complaint and “the volumes of evidence provided in the record.” Id. We
have reviewed the appellant’s EEO complaint, but we find nothing that would
support his allegations about the deciding official’s connection to the disclosure.
IAF, Tab 26 at 217-19. The appellant is responsible for specifying with
reasonable clarity in his petition for review the location of the evidence that he is
relying on, but he has not explained where in the “volumes of evidence” any
support for his allegations might be located. We therefore find that his arguments
provide no basis to disturb the administrative judge’s finding that the deciding
official had little retaliatory motive. See Weaver v. Department of the Navy,
2 M.S.P.R. 129, 133 (1980) (determining that, before the Board will undertake a
complete review of the record, the petitioning party must explain why the
challenged factual determination is incorrect, and identify the specific evidence in
the record which demonstrates the error), review denied, 669 F.2d 613 (9th Cir.
1982) (per curiam).
¶26 Regarding the third Carr factor, the administrative judge found that neither
party presented evidence of similarly situated nonwhistleblowers and that this
factor was therefore irrelevant. ID at 17-18. The appellant does not directly
challenge this finding on review, and we see no basis to disturb it.
¶27 Weighing the two relevant factors together, we agree with the
administrative judge’s ultimate conclusion that the agency proved by clear and
convincing evidence that it would have suspended the appellant even absent his
disclosure. ID at 18. Although the DFFMO had a very strong motive to retaliate,
we find that his influence over the agency’s action was remote; he merely
referred C.B.’s complaints to the appropriate officials. IAF, Tab 10 at 124-25.
The investigation was actually conducted by another agency official at the
appellant’s supervisor’s behest. Id. at 89-103. Although the DFFMO provided a
declaration for the investigation that contained a rather unflattering depiction of
the appellant’s behavior, that declaration did not provide a basis for any of the
15
charges against the appellant, and there is no indication that it substantially
influenced the course of the agency’s action. Id. at 123-26. Furthermore, even if
the DFFMO did nothing about C.B.’s complaint (which would be contrary to
agency policy, as the DFFMO describes it), we find that the investigation still
would have occurred and the appellant would have been disciplined because C.B.
also complained to the appellant’s supervisor, who ultimately initiated the
investigation. Id. at 90, 224-25. In sum, we find that, although the DFFMO’s
motive to retaliate was very strong, he had little if any influence over the
suspension. Considering the DFFMO’s strong retaliatory motive and slight
influence over the suspension, the proposing and deciding officials’ slight
motives and strong influence, and the strong evidence in support of the
suspension decision, we agree with the administrative judge that the agency
proved by clear and convincing evidence that it would have suspended the
appellant notwithstanding his March 2013 disclosure.
The agency established that the deciding official considered all of the pertinent
penalty factors and that the 30-day suspension was within the tolerable limits of
reasonableness.
¶28 The administrative judge found that the deciding official considered all of
the pertinent penalty factors and that his penalty selection was therefore entitled
to deference. ID at 18-19. She further found that, in light of all these factors, the
30-day suspension was within the tolerable limits of reasonableness. ID at 19-21.
On review, the appellant addresses each of the penalty factors set forth in
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), and argues
that the 30-day suspension was inappropriate. PFR File, Tab 1 at 11-21.
¶29 Regarding the first Douglas factor, the nature and seriousness of the
offense, and its relation to the appellant’s duties, position, and responsibilities,
the appellant appears to dispute the deciding official’s finding that he and C.B.
interact frequently at work. PFR File, Tab 1 at 11-12; IAF, Tab 9 at 35-36.
However, the record, including C.B.’s declaration and the appellant’s own
16
inappropriate email to C.B. regarding his timesheet, suggests that they do interact
frequently at work. IAF, Tab 10 at 85-86, Tab 30 at 29-30.
¶30 Regarding the second factor, the appellant’s job level and type of
employment, he argues that the deciding official failed to explain how this factor
relates to the penalty analysis. PFR File, Tab 1 at 12. We disagree. The
deciding official found that the appellant is a supervisor and manager, and the
agency expected him to be a leader and an example to the other employees. IAF,
Tab 9 at 37-38. The deciding official’s assessment of this factor is consistent
with well-established Board precedent. See, e.g., Hill v. Department of the Army,
120 M.S.P.R. 340, ¶ 15 (2013) (noting that supervisors are held to a higher
standard of conduct).
¶31 Regarding the third factor, the appellant’s past disciplinary record, he
argues that the administrative judge “ignore[d] whether or not this Factor had any
bearing on [the deciding official’s] decision.” PFR File, Tab 1 at 12. However,
an administrative judge’s failure to mention all of the evidence of record does not
mean that she did not consider it in reaching her 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). In any event, we have reviewed the
record, and we find that the deciding official properly noted the appellant’s lack
of prior discipline. IAF, Tab 9 at 38.
¶32 Regarding the fourth Douglas factor, the appellant’s past work record, the
appellant argues that the agency failed to consider his 11 years of prior
employment with the Federal Bureau of Investigation (FBI). PFR File, Tab 1 at
12-13; IAF, Tab 9 at 38. We disagree. On the last page of his Douglas factors
worksheet, the deciding official emphasized the appellant’s “clean disciplinary
record for 22 years,” a period encompassing his service with the FBI. IAF, Tab 9
at 43. The appellant also argues that the deciding official did not adequately
consider his ability to get along with his coworkers. PFR File, Tab 1 at 13.
Again, we disagree. The record shows that the deciding official considered the
17
letters of support that the appellant’s coworkers sent. IAF, Tab 9 at 38, Tab 10 at
27-32, 36-42, 46-48, 51-57, 66.
¶33 Regarding the fifth factor, the effect upon the appellant’s ability to perform
at a satisfactory level, and upon his supervisor’s confidence in his ability to
perform, the appellant again argues that the proposing and deciding officials were
not his supervisors, and therefore their trust and confidence in him are irrelevant.
PFR File, Tab 1 at 13; IAF, Tab 9 at 38-39. For the reasons explained above, we
disagree. Supra ¶ 18.
¶34 Regarding the sixth factor, the consistency of the penalty with those
imposed upon other employees for the same or similar offense, the appellant
argues that the administrative judge erred in placing the burden on him to show
that he was treated disparately. PFR File, Tab 1 at 14. This, however, is
consistent with Board precedent, which requires that the appellant make an initial
showing of disparate penalty before the burden shifts to the agency to justify the
apparent disparity. Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657,
¶ 16 (2010). The appellant also argues that another employee, who occupies a
similar position under the same supervisor, got into an argument with a coworker
while on duty, in front of others, and called the coworker a “mother f***er” twice
and used the word “f**k” several more times. PFR File, Tab 1 at 14. Yet this
employee’s penalty was only to “read the inclusiveness policy.” Id. Assuming
without deciding that the appellant’s allegations are true, we find that this
employee’s actions, though improper, are not comparable to the appellant’s; they
occurred in one discrete incident, whereas the appellant was charged with
multiple inappropriate communications over the course of several months, thus
displaying a pattern of repeated misconduct. 6 See Blow v. Department of the
Navy, 11 M.S.P.R. 102, 105 (1982) (reasoning that a single, spontaneous incident
of pushing a coworker was not comparable to multiple instances of
6
If the record contains any evidence of this comparison employee, we were unable to
locate it. The petition for review contains no pertinent record citation.
18
insubordination and threatening to inflict bodily harm). The appellant also cites
an incident in which another District Ranger under the same supervisor, during
roughly the same time period, “was charged with sexual harassment of employees
by distributing condoms to male subordinates on Agency property during work
hours,” but received only a 3-day suspension. 7 PFR File, Tab 1 at 15; IAF, Tab
22 at 23-27. Again, we find that this conduct, although improper, was not
comparable to the appellant’s because there was only a single occurrence. IAF,
Tab 22 at 23.
¶35 Regarding factor seven, consistency with the agency’s table of penalties, the
appellant acknowledges that a 30-day suspension falls within the recommended
range for a first offense of off-duty misconduct and inappropriate use of
Government resources. PFR File, Tab 1 at 15; IAF, Tab 9 at 40, Tab 26 at 70-71.
He argues, however, that the agency inappropriately considered that he was
engaging in an adulterous affair. PFR File, Tab 1 at 15-16. We agree with the
appellant that it would be inappropriate for the agency to discipline him for
“misconduct that is private in nature and that does not implicate job performance
in any direct and obvious way.” Doe v. Department of Justice, 565 F.3d 1375,
1380 (Fed. Cir. 2009). However, notwithstanding the agency’s reference to the
appellant’s “adulterous affair,” IAF, Tab 9 at 40, we find that the agency’s action
was not based on the affair per se, but rather on the appellant’s associated
misconduct with a work colleague, which had a demonstrable connection to the
workplace.
¶36 Regarding the eighth Douglas factor, the notoriety of the offense or its
impact upon the reputation of the agency, the deciding official found that it was
known among the appellant’s coworkers and some individuals in the local
7
Contrary to the appellant’s description, the record shows that this conduct occurred
during an off-duty going-away celebration, at which the employee in question supplied
two piñatas filled with candy and condoms. IAF, Tab 22 at 23. This appears to us to
have been a joke in poor taste, in contrast to the misconduct at issue here, the vast
majority of which was intended to cause distress.
19
community from whom the appellant solicited letters of support in response to the
proposed removal. IAF, Tab 9 at 40-41. Notwithstanding, it does not appear to
us that this incident was publicized, widely known, or otherwise had a significant
effect on the agency’s reputation. Although the deciding official’s assessment of
this factor was ambiguous, we agree with the appellant that it was not an
aggravating factor. PFR File, Tab 1 at 16.
¶37 Regarding the ninth factor, the clarity with which the appellant was on
notice of any rules that he violated, the deciding official found that, as a District
Ranger, the appellant should have been aware that his conduct was unacceptable.
IAF, Tab 9 at 41. He also found that the appellant’s conduct ran counter to the
annual Prevention of Sexual Harassment training that he received, as well as
certain agency policies and regulations, and his duties as a District Ranger. Id.
On review, the appellant argues that he had not received the training and that the
agency was using this factor to “shoehorn” a sexual harassment allegation into his
case. PFR File, Tab 1 at 16-17. We read the deciding official’s analysis not as
accusing the appellant of additional uncharged misconduct but rather as listing
the various reasons that the appellant should have known that the charged
misconduct was unacceptable. IAF, Tab 9 at 41. In any event, we find that the
appellant should have required no special training or instruction to realize that his
conduct was inappropriate.
¶38 Regarding factor ten, the appellant’s potential for rehabilitation, the
deciding official acknowledged that the appellant expressed remorse for his
actions, accepted responsibility, and cooperated with the agency throughout the
investigation and discipline process. Id. at 42. This was tempered somewhat by
the appellant’s continued insistence that his communications were private and did
not implicate his trustworthiness or reliability. Id. The deciding official
concluded that, although he had lost trust in the appellant’s judgment and ability
to act professionally, he nevertheless believed, based on the appellant’s
statements and work history, that he had potential for rehabilitation. Id. On
20
review, the appellant argues that the proposing and deciding officials failed to
consider his apology to C.B. and C.B.’s acceptance thereof. PFR File, Tab 1
at 17-18. We find, however, that, although the deciding official did not discuss
this matter specifically, he adequately considered the appellant’s statements of
remorse as a whole and properly considered the appellant’s rehabilitative
potential to be a mitigating factor. IAF, Tab 9 at 42.
¶39 Regarding factor eleven, mitigating circumstances surrounding the offense,
the appellant argues that the deciding official failed to consider adequately the
intense personal difficulties that he was undergoing at the time, including his
living separately from his wife due to the agency’s broken promise to find a job
for her nearby, his wife’s being dragged into the acrimonious breakup of the
affair, the death of the firefighter, and multiple false accusations by agency
management. PFR File, Tab 1 at 18-20. We find, however, that, apart from the
“false accusations,” the deciding official considered all of these matters. IAF,
Tab 9 at 42-43. We therefore disagree with the appellant that the agency
minimized the difficult personal circumstances that contributed to his misconduct.
PFR File, Tab 1 at 20.
¶40 Regarding the twelfth and last Douglas factor, the adequacy and
effectiveness of alternative sanctions, the appellant asserts that the proposing
official did not thoroughly analyze what alternative sanctions might have been
appropriate. PFR File, Tab 1 at 20; IAF, Tab 10 at 76. However,
notwithstanding any lack of analysis by the proposing official, we find that the
deciding official adequately considered this factor, and it is the adequacy of the
deciding official’s consideration that is important. IAF, Tab 9 at 43; see Davis v.
U.S. Postal Service, 120 M.S.P.R. 457, ¶ 6 (2013) (“[I]f the deciding official
failed to appropriately consider the relevant factors, the Board need not defer to
the agency’s penalty determination.”) (emphasis added). The appellant also
argues that the agency imposed other penalties against him in addition to the
suspension, including an involuntary detail, permanent reassignment,
21
nonselection for promotion, and blackballing from other District Ranger
positions. PFR File, Tab 1 at 20-21. However, we have not considered these
matters, because, even if the agency took these actions against the appellant, they
are not appealable to the Board. 8 See Maddox v. Merit Systems Protection Board,
759 F.2d 9, 10 (Fed. Cir. 1985) (finding that a reassignment without loss of grade
or pay is not an appealable action); Pridgen v. Office of Management and Budget,
117 M.S.P.R. 665, ¶ 6 (2012) (noting that a nonselection generally is not
appealable to the Board); Snow v. Department of the Air Force, 39 M.S.P.R. 582,
584 (1989) (indicating that a temporary detail that does not involve a loss in pay
or grade is not appealable to the Board).
¶41 For the reasons explained in the initial decision, we agree with the
administrative judge that the deciding official appropriately considered the
relevant penalty factors and that his selection of a 30-day suspension was within
the tolerable limits of reasonableness. ID at 18-21. For the reasons explained
above, the appellant has not provided an adequate basis to disturb the
administrative judge’s findings.
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 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.
8
The appellant asserts that he was selected for a final interview for more than 30
District Ranger positions across the country but that he was not hired due to his
protected disclosure. PFR File, Tab 1 at 21. Although this matter is not directly
appealable to the Board, it may form the basis for an individual right of action appeal
under 5 U.S.C. § 1221, provided that the appellant first exhausts his administrative
remedies with the Office of Special Counsel under 5 U.S.C. § 1214(a).
22
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 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,
23
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. See 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 review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or by 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.
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 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
24
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.