Andrea X. Williams v. Social Security Administration

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANDREA X. WILLIAMS, DOCKET NUMBER

Appellant, AT-1221-13-0239-B-2

v.

SOCIAL SECURITY DATE: June 3, 2016

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Phillip Thomason, Esquire, Dawsonville, Georgia, for the appellant.

Avni D. Gandhi, Esquire, and Peter S. Massaro, III, Esquire, Atlanta,

Georgia, 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 remand initial decision,

which denied the appellant’s request for corrective action in this individual right

of action (IRA) appeal. Generally, we grant petitions such as this one only when:

the initial decision contains erroneous findings of material fact; the initial

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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decision is based on an erroneous interpretation of statute or 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 and AFFIRM the remand initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 This IRA appeal stems from the appellant’s allegation that his 14-day

suspension was an act of whistleblower reprisal. Williams v. Social Security

Administration, MSPB Docket No. AT-1221-13-0239-W-1, Initial Appeal File

(IAF), Tab 1 at 5. The administrative judge initially dismissed the appeal for lack

of jurisdiction, but we remanded for further adjudication. Williams v. Social

Security Administration, MSPB Docket No. AT-1221-13-0239-W-1, Remand

Order at 3-4 (Sept. 30, 2013) (W‑1 Remand Order). Thereafter, the

administrative judge held a hearing and issued a decision, finding that, although

the appellant established jurisdiction, he failed to establish that he made any

disclosure that was protected under 5 U.S.C. § 2302(b)(8). Williams v. Social

Security Administration, MSPB Docket No. AT‑1221‑13‑0239‑B-1, Remand

File (B‑1 RF), Tab 37, Remand Initial Decision (B‑1 RID) at 5-10. The

administrative judge also found, in the alternative, that the agency established by

clear and convincing evidence that it would have taken the same personnel action

in the absence of his disclosure. B-1 RID at 10‑13.

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¶3 On review of that remand initial decision, we affirmed in part, vacated in

part, and remanded the matter a second time. Williams v. Social Security

Administration, MSPB Docket No. AT-1221-13-0239-B-1, Remand Order

(Dec. 9, 2014) (B‑1 Remand Order). In short, we found that the appellant did

make a protected disclosure under section 2302(b)(8) when he reported that he

was denied his right to union representation during a formal discussion with the

agency. Id. at 4-5. We also found that the appellant established that this

protected disclosure was a contributing factor in his 14-day suspension based

upon the knowledge/timing test. Id. at 5. We remanded for further adjudication

of whether the agency would have taken the same action in the absence of the

appellant’s disclosure, noting that it was inappropriate for the administrative

judge to address that matter previously, without first finding that the appellant

established a prima facie case of reprisal. Id. at 5‑8.

¶4 The administrative judge conducted another hearing and accepted additional

evidence to supplement the existing record. See, e.g., Williams v. Social Security

Administration, MSPB Docket No. AT-1221-13-0239-B-2, Remand File

(B-2 RF), Tab 4 at 1-2. She then issued a decision, finding that the agency

proved by clear and convincing evidence that it would have taken the 14-day

suspension in the absence of the appellant’s protected disclosure. B‑2 RF,

Tab 18, Remand Initial Decision (B‑2 RID) at 3-9. Accordingly, she denied the

appellant’s request for corrective action. Id. at 9. The appellant has filed a

petition for review. Williams v. Social Security Administration, MSPB Docket

No. AT-1221-13-0239-B-2, Petition for Review (PFR) File, Tab 1. The agency

has filed a response, and the appellant has filed a reply. PFR File, Tabs 3‑4.

The administrative judge properly determined that the agency met its burden.

¶5 As previously detailed throughout this appeal, when reviewing the merits of

an IRA appeal, the Board considers whether the appellant has established by a

preponderance of the evidence that he made a protected disclosure under 5 U.S.C.

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§ 2302(b)(8) that was a contributing factor in the agency’s personnel action.

Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 10 (2014). If an

appellant is able to offer such proof, the Board must order corrective action

unless the agency can establish by clear and convincing evidence that it would

have taken the same personnel action in the absence of the disclosure. Id. Clear

and convincing evidence is that measure or degree of proof that produces in the

mind of the trier of fact a firm belief as to the allegations sought to be

established. Id.

¶6 Because we previously concluded that the appellant established a prima

facie case of whistleblower reprisal, the only issue that remains is whether the

agency proved by clear and convincing evidence that it would have taken the

14-day suspension in the absence of the appellant’s disclosure about being denied

the right to union representation during a formal discussion with the agency. B‑1

Remand Order at 6-8. In determining whether an agency has shown by clear and

convincing evidence that it would have taken the same personnel action, the

Board generally considers 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 v. Social Security Administration, 185 F.3d

1318, 1323 (Fed. Cir. 1999)). Our reviewing court has further clarified that

“[e]vidence only clearly and convincingly supports a conclusion when it does so

in the aggregate considering all the pertinent evidence in the record, and despite

the evidence that fairly detracts from that conclusion.” Whitmore v. Department

of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).

The strength of the agency’s evidence in support of its action.

¶7 The alleged facts underlying the appellant’s suspension include his

receiving a telephone call from one friend reporting that another friend may have

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been misusing benefits administered by the agency. B‑1 RF, Tab 32 at 118.

According to the agency, the appellant violated agency policy by then accessing

the corresponding records, rather than disqualifying himself from the matter. Id.

at 120. Thereafter, the agency interviewed the appellant on March 13 and

April 12, 2012, but the agency alleged that he exhibited a lack of candor in

answering some questions and failed to obey an order by refusing to answer

others. Id. at 119-20. The agency proposed the appellant’s 14-day suspension

based on charges of (1) failure to obey the direct order of an authorized

supervisor, (2) lack of candor during a fact-finding interview, and (3) violation of

the agency policy for systems access. Id. at 118-23. The deciding official

sustained all three charges and the 14-day suspension. Id. at 102‑09.

¶8 We agree with the administrative judge’s determination that the agency had

strong evidence to support the 14-day suspension. B‑2 RID at 3-6. Evidence

supporting the violation of agency policy for systems access included, inter alia,

the appellant’s initial admissions about the matter, complaints and reports from

the appellant’s friends, telephone records, and systems access reports. B‑1 RF,

Tab 32 at 148-59, 162-67, 192-201. Evidence supporting the other charges

included, inter alia, the records, notes, and transcripts stemming from the

interviews in which the appellant reportedly failed to obey an order and exhibited

a lack of candor, as well as hearing testimony. Id. at 129-40, 168‑90.

¶9 The appellant alleges that the administrative judge erred by indicating that

the deciding official relied on a written report from the Office of Inspector

General (OIG) to sustain the violation of agency policy charge. PFR File, Tab 1

at 6 (referencing B‑2 RID at 5). However, the administrative judge merely

indicated that the deciding official had an OIG report–she did not specify whether

that report was written or verbal. B‑2 RID at 5. That conclusion is consistent

with testimony from the OIG investigator and the deciding official, both of which

confirmed that the two had discussions about the underlying matter despite the

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deciding official never receiving OIG’s final written report. B‑1 RF, Hearing

Transcript (HT) (testimony of S.J. at 303, 307-09; testimony of L.D. at 345‑48).

Moreover, this was but one of a number of pieces of evidence supporting the

charge and suspension. See, e.g., B‑1 RF, Tab 32 at 166-67, 192‑94. Therefore,

even if the administrative judge’s decision could be construed as erroneously

suggesting that the deciding official had the written OIG report, the error was

harmless. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984) (explaining that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision).

The existence and strength of any motive to retaliate.

¶10 The underlying disclosure in this matter is the appellant’s report to a

Regional Commissioner and the OIG that an agency official did not honor his

right to union representation during a formal discussion with the agency. See B‑1

Remand Order at 4-5; B‑1 RF, Tab 32 at 124-26. The administrative judge

concluded that the agency officials who were most relevant in considering the

motive to retaliate against the appellant for this protected disclosure included

K.K., the individual the appellant accused of failing to honor his right to

representation, C.G., the proposing official to his suspension, and L.D., the

deciding official to his suspension. B‑2 RID at 7.

¶11 When applying the second Carr factor, the Board will consider any motive

to retaliate on the part of the agency officials who ordered the action, as well as

any motive to retaliate on the part of other officials who influenced the decision.

Carr, 185 F.3d at 1326. It is also relevant to consider that “[t]hose responsible

for the agency’s performance overall may well be motivated to retaliate even if

they are not directly implicated by the disclosures, and even if they do not know

the whistleblower personally, as the criticism reflects on them in their capacities

as managers and employees.” Whitmore, 680 F.3d at 1370. Accordingly, the

administrative judge noted that K.K. was the subject of the appellant’s protected

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disclosure and recommended a written reprimand for the appellant’s violation of

policy concerning systems access. B‑2 RID at 7 (citing B‑1 RF, Tab 33,

Subtab G). In addition, she noted that, although the proposing and deciding

officials did not have any personal motive, they may have had an institutional

motive to retaliate against the appellant. B‑2 RID at 7.

¶12 The appellant seems to assert that, because the administrative judge found

that the agency had some motive to retaliate, she was precluded from finding that

the agency still met its burden of proof. E.g., PFR File, Tab 1 at 5. However, the

Board does not view the Carr factors as discrete elements, each of which the

agency must prove by clear and convincing evidence. Mithen v. Department of

Veterans Affairs, 122 M.S.P.R. 489, ¶ 36 (2015). Instead, the Board weighs the

factors together to determine whether the evidence is clear and convincing as a

whole. Id. Accordingly, the administrative judge’s determination that the agency

had some motive to retaliate does not preclude finding that the agency met its

burden of proof. See, e.g., id., ¶¶ 29-33 (finding that an agency proved that it

would have taken the same personnel action, notwithstanding an employee’s

protected disclosure, even though it had some motive to retaliate).

Evidence that the agency takes similar actions against employees who

are not whistleblowers but who are otherwise similarly situated.

¶13 The administrative judge considered three individuals that the appellant

identified as similarly situated nonwhistleblowers, finding that two were, in fact,

similarly situated. B‑2 RID at 8-9. However, the deciding official to the

appellant’s 14-day suspension imposed a similar 14-day suspension on both of

those comparators. B‑2 RF, Tab 12 at 4-6, Tab 13, Subtab 3. Accordingly, the

administrative judge determined that the agency takes similar actions against

employees who are not whistleblowers but are otherwise similarly situated. B-2

RID at 9.

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¶14 On review, the appellant alleges that the two individuals the administrative

judge utilized as comparator nonwhistleblowers engaged in much more egregious

misconduct, suggesting that their 14-day suspensions support a conclusion that

the agency retaliated by imposing that same penalty for his misconduct. 2 E.g.,

PFR File, Tab 1 at 7-8. We find no merit to his arguments.

¶15 As the administrative judge noted, the deciding official to the appellant’s

14-day suspension imposed a similar 14-day suspension on the first comparator

for conduct unbecoming, lack of candor, and inappropriate access of agency

records. B‑2 RID at 8; B‑2 RF, Tab 13, Subtab 3. The same deciding official

also imposed a 14-day suspension on the second comparator for failing to abide

by the agency’s standards of conduct by calling and texting members of the

public for personal reasons after meeting them in his professional capacity.

B-2 RID at 8-9; B‑2 RF, Tab 12 at 4-9. Although there are distinguishing factors

amongst these disciplinary actions, the appellant has provided no basis for

concluding that the differences are meaningful for purposes of this analysis. See

generally Whitmore, 680 F.3d at 1373 (recognizing that there will always be some

basis for distinguishing between two persons and their misconduct, but

comparators need only be similarly situated for purposes of Carr factor three).

Accordingly, we agree with the administrative judge’s conclusion that these

comparators support a conclusion that the agency takes similar disciplinary

actions against whistleblowers and nonwhistleblowers, alike. B‑2 RID at 9.

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To the extent that the appellant also suggests that the administrative judge erred by

concluding that a third individual was not similarly situated, we disagree. See, e.g.,

PFR File, Tab 1 at 12. As the administrative judge noted, that individual was tardy on

days during which she was scheduled to attend mandatory meetings, which she

attributed to getting her child to school, and she failed to fully participate in a

fact-finding interview about the same. B‑2 RID at 9; B‑2 RF, Tab 13, Subtab 4. That

misconduct and the attendant circumstances are substantially less similar to that of the

appellant than those of the comparators the administrative judge relied upon to address

Carr factor three.

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Conclusion

¶16 The administrative judge concluded that, although the relevant agency

officials had some motive to retaliate, that motive was outweighed by the

evidence supporting the 14-day suspension and evidence of similar actions taken

against employees who were not whistleblowers. B‑2 RID at 9. Therefore, she

found that the agency met its burden of proving by clear and convincing evidence

that it would have taken the same action notwithstanding the appellant’s protected

disclosure. Id. We agree. The appellant’s arguments do not establish any basis

for reaching a contrary conclusion.

The appellant’s remaining arguments provide no basis for disturbing the

initial decision.

¶17 The appellant has presented a number of additional arguments. However,

they seem to reflect misunderstandings of the Board’s procedures, our prior

remand order, and the applicable legal standards. None provide a basis for

disturbing the initial decision.

¶18 First, the appellant generally alleges that the administrative judge failed to

follow the Federal Rules of Evidence and Civil Procedure. PFR File, Tab 1

at 3 4. He seems to suggest that these rules should have precluded the

administrative judge from relying upon some of the evidence that supported the

charge pertaining to a systems access violation. Id. at 6. However, while the

Federal Rules may be used to provide guidance, they are not binding on the

Board. Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 35 (2010),

aff’d, 635 F.3d 526 (Fed. Cir. 2011). We discern no basis for concluding that the

administrative judge should have but failed to follow the guidance those rules

may provide.

¶19 Next, the appellant erroneously asserts that, because we vacated the

administrative judge’s prior clear and convincing analysis, the agency was

required to submit new evidence to meet its burden of proof and the

administrative judge was precluded from relying upon the evidence submitted in

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prior portions of this IRA appeal. PFR File, Tab 1 at 9. We vacated the prior

clear and convincing analysis because the administrative judge conducted that

analysis as alternative findings when the applicable statute precluded her from

doing so. B‑1 Remand Order at 5-6 (citing 5 U.S.C. § 1221(e)(2) and Clarke v.

Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d,

623 F. App’x 1016 (Fed. Cir. 2015)). Nevertheless, our remand order did not

require that the agency submit additional evidence, nor did it preclude the

administrative judge from relying upon existing evidence to find that the agency

met its burden. B‑1 Remand Order at 6-8. In fact, our remand order explicitly

recognized that some of the administrative judge’s prior alternative findings

might support a conclusion that the agency would have taken the challenged

personnel action in the absence of the appellant’s protected disclosure. Id. at 6‑7.

¶20 The appellant also argues that the administrative judge failed to consider all

the relevant Douglas factors in determining whether the agency met its burden.

PFR File, Tab 1 at 5. However, the appellant’s reliance upon Douglas is

misplaced. The Douglas factors are those factors that may be relevant while

considering an agency’s chosen penalty in a chapter 75 appeal, when the agency

has the burden of proving that its penalty is reasonable. Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981). In the instant IRA appeal, the

agency is not required to prove that its chosen penalty is reasonable; it is required

to prove that it would have taken the same personnel action notwithstanding the

appellant’s protected disclosure. See Weaver v. Department of

Agriculture, 55 M.S.P.R. 569, 576 (1992) (recognizing that, in an IRA appeal, the

Board can either grant or deny a request for corrective action, and the

appropriateness of the penalty imposed by the agency is not at issue). The

appellant’s other arguments concerning the propriety of the underlying

suspension, such as allegations of ex parte communications in violation of Stone

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v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999),

are similarly unavailing in this IRA appeal. PFR File, Tab 1 at 27‑28.

¶21 The appellant next identified one purported misstatement in the second

remand initial decision. According to the appellant, the administrative judge

erroneously indicated that the agency had produced some documentation for the

appeal when, in fact, it was the appellant that produced that evidence. PFR File,

Tab 1 at 6. However, such a misstatement, even if true, does not prejudice the

appellant’s substantive rights; the error is harmless. See Panter, 22 M.S.P.R.

at 282.

¶22 Finally, the appellant has alleged that the administrative judge was biased

and prejudiced against him. PFR File, Tab 1 at 19. In making a claim of bias or

prejudice against an administrative judge, a party must overcome the presumption

of honesty and integrity that accompanies administrative adjudicators. Oliver v.

Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative

judge’s conduct during the course of a Board proceeding warrants a new

adjudication only if her comments or actions evidence “a deep-seated favoritism

or antagonism that would make fair judgment impossible.” Bieber v. Department

of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v.

United States, 510 U.S. 540, 555, (1994)). Although the appellant has expressed

significant disagreement with the administrative judge’s findings, his allegations

do not meet the aforementioned standards. See King v. Department of the

Army, 84 M.S.P.R. 235, ¶ 6 (1999) (recognizing that an administrative judge’s

case related rulings, even if erroneous, are insufficient to establish bias).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit.

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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

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 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

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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 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.