The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 27
Docket No. DC-0752-15-1058-I-1
Lawrence E. Mattison,
Appellant,
v.
Department of Veterans Affairs,
Agency.
July 15, 2016
Lawrence E. Mattison, Hampton, Virginia, pro se.
Timothy M. O’Boyle, Esquire, Hampton, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of an initial decision that
sustained his indefinite suspension. For the following reasons, we DENY the
appellant’s petition for review and AFFIRM the initial decision.
BACKGROUND
¶2 The appellant held the position of Housekeeping Aid (Leader) at a Veterans
Administration Medical Center in Hampton, Virginia. Initial Appeal File (IAF),
Tab 5 at 10. During the first half of 2015, local police arrested him on charges of
stalking and violation of a protective order. IAF, Tab 5 at 32, 36-41, Tab 18,
2
Subtab 11. The alleged victim was another agency employee. IAF, Tab 5
at 43-56.
¶3 In July 2015, the agency proposed the appellant’s indefinite suspension,
citing his arrest and stating that there was reasonable cause to believe that he
might be guilty of a crime for which a sentence of imprisonment might be
imposed. Id. at 32-35. After the appellant responded to the proposal, id.
at 14-31, the deciding official upheld the indefinite suspension, id. at 11-13.
Thereafter, the appellant filed the instant appeal, challenging his indefinite
suspension. 1 IAF, Tab 1.
¶4 Based upon the written record, the administrative judge affirmed the
appellant’s indefinite suspension. 2 IAF, Tab 28, Initial Decision (ID). The
appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.
The agency has filed a response, PFR File, Tab 3, and the appellant has replied,
PFR File, Tab 4.
ANALYSIS
¶5 To sustain an indefinite suspension, the agency must show: (1) it imposed
the suspension for an authorized reason; (2) the suspension has an ascertainable
end, i.e., a determinable condition subsequent that will bring the suspension to a
conclusion; (3) the suspension bears a nexus to the efficiency of the service; and
(4) the penalty is reasonable. Sanchez v. Department of Energy, 117 M.S.P.R.
155, ¶ 9 (2011). One of the authorized circumstances for imposing an indefinite
suspension is when the agency has reasonable cause to believe an employee has
1
The agency removed the appellant in February 2016, and that matter has been
addressed in a separate appeal. See Mattison v. Department of Veterans Affairs, MSPB
Docket No. DC-0752-16-0350-I-1, IAF, Tab 12 at 10; Mattison, MSPB Docket No.
DC-0752-16-0350-I-1, Initial Decision (Mar. 15, 2016).
2
The appellant did not request a hearing. IAF, Tab 6 at 1, Tab 8 at 2.
3
committed a crime for which a sentence of imprisonment could be imposed,
pending the outcome of the criminal proceeding or any subsequent agency action
following the conclusion of the criminal process. Gonzalez v. Department of
Homeland Security, 114 M.S.P.R. 318, ¶ 13 (2010).
¶6 In his petition for review, the appellant does not present any substantive
argument concerning the agency meeting the aforementioned burden.3 Instead, he
reasserts several affirmative defenses. PFR File, Tab 1 at 5-11. As further
discussed below, we find no merit to his arguments.
The administrative judge properly denied the appellant’s retaliation
affirmative defense.
¶7 The appellant first reasserts that his indefinite suspension was the result of
improper retaliation for filing two appeals within the agency—an Information
Security Office (ISO) appeal and a Freedom of Information Act (FOIA) appeal.
PFR File, Tab 1 at 5-6, 10. The ISO appeal was, in essence, an appeal filed with
the agency’s privacy office, in which the appellant alleged that a number of
individuals had accessed his medical records without authorization. IAF, Tab 18,
Subtab 10; PFR File, Tab 1 at 5-6. The FOIA appeal involved his request for
information gathered by police for their investigation. IAF, Tab 18, Subtab 13.
¶8 The appellant did not seek to remedy whistleblowing reprisal in his ISO or
FOIA appeals. IAF, Tab 18, Subtabs 10, 13. Therefore, his affirmative defense
of retaliation for these appeals arises under 5 U.S.C. § 2302(b)(9)(A)(ii). See
3
Although the appellant summarily asserted that the administrative judge erred in
finding that the agency proved nexus, he failed to present any substantive argument in
support of the claim. PFR File, Tab 1 at 9. Accordingly, we find no reason to revisit
the administrative judge’s well-reasoned findings on that issue or on any of her other
unchallenged findings. ID at 5-8; see generally Pararas-Carayannis v. Department of
Commerce, 9 F.3d 955, 958 (Fed. Cir. 1993) (recognizing that an employee’s use of
Government property and time to carry out illegal acts was sufficient for the agency to
lose trust in him and, therefore, to establish the requisite nexus for his
indefinite suspension).
4
Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013) (observing
that, because an appellant’s grievance did not concern remedying an alleged
violation of 5 U.S.C. § 2302(b)(8), the Board lacked jurisdiction to consider her
allegations of reprisal for her grievance in the context of an individual right of
action appeal). For an appellant to prevail on an affirmative defense of
retaliation for activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii), if he
does not allege reprisal for equal employment opportunity (EEO) activity
protected under Title VII, he must show that: (1) he engaged in protected
activity; (2) the accused official knew of the activity; (3) the adverse action under
review could have been retaliation under the circumstances; and (4) there was a
genuine nexus between the alleged retaliation and the adverse action. See Warren
v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986); cf. Savage v.
Department of the Army, 122 M.S.P.R. 612, ¶¶ 48-51 & n.12 (2015) (effectively
limiting the Warren standard by recognizing a different standard in cases of
alleged reprisal for engaging in Title VII EEO activity, even if such claims could
be construed as a prohibited personnel practice under section 2302(b)(9)(A)(ii));
Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶¶ 12-15 & n.7 (2015)
(noting that the statutory changes of the Whistleblower Protection Enhancement
Act of 2012 significantly narrowed the scope of cases to which the Warren
standard applies). To establish a genuine nexus, an appellant must show that the
adverse action was taken because of his protected activity. Smith v. Department
of Transportation, 106 M.S.P.R. 59, ¶ 63 (2007) (using this standard to analyze a
pre-Savage EEO retaliation complaint); see Warren, 804 F.2d at 658. This
requires the Board to weigh the severity of the appellant’s alleged misconduct
against the intensity of the agency’s motive to retaliate. Smith, 106 M.S.P.R. 59,
¶ 63.
¶9 The administrative judge found, inter alia, that the appellant failed to prove
the genuine nexus element, and we agree. ID at 9. The appellant’s alleged
misconduct, being arrested for violating a protective order and stalking another
5
agency employee, is severe. IAF, Tab 5 at 32, 36-56; e.g., Lentine v. Department
of the Treasury, 94 M.S.P.R. 676, ¶¶ 2, 12, 15 (2003) (finding removal was a
reasonable penalty for intentional, repeated, and unwelcome contact with another
agency employee). By comparison, there is little reason to believe that the
agency had an intense motive to retaliate for the appellant’s ISO or FOIA
appeals. IAF, Tab 18, Subtabs 10, 13. It appears that the ISO appeal resulted in
an acknowledgment that two individuals with the agency’s Police Service
accessed the appellant’s health records without the authority to do so. Id.,
Subtab 10 at 5. Yet there is nothing else in the record to suggest, for example,
that either appeal cast other agency officials or the agency as a whole in a
particularly negative light. Id. The appellant correctly notes that he filed his ISO
and FOIA appeals just a few months before the agency indefinitely suspended
him. PFR File, Tab 1 at 6. Nevertheless, we agree with the administrative
judge’s conclusion that, despite the short time period, the record does not support
a finding of genuine nexus. ID at 9; see Warren, 804 F.2d at 658; Smith,
106 M.S.P.R. 59, ¶ 63. Accordingly, we find that the appellant failed to prove his
retaliation affirmative defense.
The appellant failed to establish a violation of 5 U.S.C. § 2302(b)(2).
¶10 The appellant next argues that the agency violated 5 U.S.C. § 2302(b)(2)
when the deciding official considered a portion of the proposing official’s
analysis of two Douglas factors: (1) the effect of the offense upon the appellant’s
ability to perform at a satisfactory level and its effect upon his supervisor’s
confidence in the appellant’s ability to perform his assigned duties; and (2) the
notoriety of the offense or its impact upon the agency’s reputation. PFR File,
Tab 1 at 7 (referencing IAF, Tab 5 at 34-35); see generally Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of
factors that are relevant to determining the appropriate penalty). It is unclear
whether the appellant is reasserting an argument he made below or presenting an
altogether new argument. Compare IAF, Tab 18 at 10, with PFR File, Tab 1 at 7;
6
see Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980)
(recognizing that the Board generally will not consider an argument raised for the
first time in a petition for review absent a showing that it is based on new and
material evidence not previously available despite the party’s due diligence).
Nevertheless, we have considered the argument and find it unavailing. See, e.g.,
Melnick v. Department of Housing & Urban Development, 42 M.S.P.R. 93, 97-98
(1989) (observing that parties without legal representation are not required to
plead issues with precision), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table).
¶11 Section 2302(b)(2) prohibits agency officials from soliciting statements
from individuals about a person under consideration for a personnel action unless
the statement is based on personal knowledge or the records of the person
providing it and concerns matters such as the performance, qualifications,
character, or suitability of the individual at issue. However, as our reviewing
court has explained, section 2302(b)(2) “relates to statements or
recommendations by outsiders, like senators or congressmen; the legislative
objective was to forestall political or partisan interference in personnel actions.”
Depte v. United States, 715 F.2d 1481, 1484 (Fed. Cir. 1983), overruled on other
grounds by Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376
n.4 (Fed. Cir. 1999). As a result, the appellant’s reliance upon section 2302(b)(2)
is misplaced. Despite his conclusory assertion that the proposing official had no
factual information to support his analysis of two Douglas factors, PFR File,
Tab 1 at 7, his allegations do not support a prohibited personnel practice claim
under section 2302(b)(2). The proposing official was not an outsider; he was an
agency manager. IAF, Tab 5 at 32-35. Accordingly, we find that the appellant
failed to establish a violation of 5 U.S.C. § 2302(b)(2).
The administrative judge properly denied the appellant’s due process
affirmative defense.
¶12 The appellant next argues that the agency violated his due process rights.
PFR File, Tab 1 at 7. Specifically, he alleges that “the agency’s actions in
7
establishing a criminal charge, the lack of agency’s candor in reference to [its]
evidence by not discussing what was known to the agency as ‘new evidence’ and
by not discussing the false information in the Douglas factor report or not by
discussing any evidence at all was a due process violation.” Id. (capitalization
corrected) (referencing IAF, Tab 18 at 11-18). We find no merit to his argument.
¶13 The essential requirements of constitutional due process for a tenured
public employee are notice of the charges against him, an explanation of the
evidence, and an opportunity for him to present his account of events. Cleveland
Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). Although the
appellant has invoked his due process rights, he has failed to adequately explain
how they were violated. The record shows that the agency provided the appellant
with notice of the charges underlying his indefinite suspension, an explanation,
access to the evidence the deciding official would consider, and an opportunity to
respond. E.g., IAF, Tab 5 at 32-35. Accordingly, we find that the administrative
judge properly denied the appellant’s due process claim. ID at 10-11.
The administrative judge properly denied the appellant’s harmful error
affirmative defense.
¶14 Finally, the appellant reasserts that the agency committed harmful error.
PFR File, Tab 1 at 7-11. The Board will not sustain an agency’s decision if an
appellant proves the affirmative defense of harmful error in the agency’s
application of its procedures in arriving at such decision. Doe v. Department of
Justice, 123 M.S.P.R. 90, ¶ 7 (2015). Harmful error cannot be presumed; an
agency’s error is harmful only where the record shows that a procedural error was
likely to have caused the agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error. Id.
¶15 According to the appellant, the agency committed harmful error by leaving
him in an administrative leave status for a few months before imposing his
indefinite suspension. PFR File, Tab 1 at 9-10; IAF, Tab 18 at 7. He also asserts
that the agency committed harmful error by imposing the indefinite suspension
8
immediately after his period of administrative leave, without any day in between.
PFR File, Tab 1 at 8, 10-11. In making these assertions, the appellant suggests
that his period of administrative leave was, in essence, a paid suspension. Id.
at 9-11. However, while a period of forced sick leave, annual leave, or leave
without pay may amount to a suspension, paid administrative leave is not an
adverse action appealable to the Board. 4 LaMell v. Armed Forces Retirement
Home, 104 M.S.P.R. 413, ¶¶ 7, 9 (2007); see Abbott v. U.S. Postal Service,
121 M.S.P.R. 294, ¶ 10 (2014) (clarifying that placement of an employee on
enforced leave for more than 14 days constitutes an appealable, nonconstructive
suspension). In addition, the appellant has not identified any rule or procedure
forbidding the agency’s use of administrative leave, nor has he shown that the
agency’s actions caused him harm.
¶16 In addition, the appellant cites 5 C.F.R. § 752.404(d) as limiting any period
of nonduty status to 10 days. PFR File, Tab 1 at 9. However, this regulation
permits an agency to shorten the statutory 30-day notice period for proposed
adverse actions in cases such as this, in which an agency has reasonable cause to
believe an employee has committed a crime for which imprisonment may be
imposed. 5 C.F.R. § 752.404(d)(1). It does not impose a 10-day maximum for
nonduty status. Therefore, we agree with the administrative judge’s conclusion
that the appellant failed to prove any harmful error. ID at 10.
4
To the extent that the appellant intended to present this argument as a “not in
accordance with law” defense, his claim similarly fails. PFR File, Tab 1 at 11; 5 U.S.C.
§ 7701(c)(2)(C); see generally Stephen v. Department of the Air Force, 47 M.S.P.R.
672, 684 (1991) (recognizing that when an agency has no legal authority for taking an
action, that action is not in accordance with law and must be reversed). Despite his
suggestions to the contrary, the appellant’s period of administrative leave was not an
adverse action, and it did not preclude his indefinite suspension. See generally
Frederick v. Department of Homeland Security, 122 M.S.P.R. 401, ¶ 6 (2015)
(recognizing that an agency may not discipline an employee twice for the
same misconduct).
9
ORDER
¶17 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
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. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 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 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.
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
10
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:
______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.