The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 41
Docket No. DA-0752-15-0171-I-1
Christopher L. Elder,
Appellant,
v.
Department of the Air Force,
Agency.
November 22, 2016
Christopher L. Elder, Norman, Oklahoma, pro se.
Preston L. Mitchell, Esquire, and Telin W. Ozier, Esquire, Tinker Air
Force Base, Oklahoma, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal and granted corrective action. For the reasons
discussed below, we DENY the agency’s petition for review and AFFIRM the
initial decision as MODIFIED to analyze the appellant’s affirmative defense of
reprisal for protected activity under Alarid v. Department of the Army,
122 M.S.P.R. 600, ¶¶ 12-14 (2015).
2
BACKGROUND
¶2 The appellant was employed by the agency as an Electrician. Initial
Appeal File (IAF), Tab 4 at 18. The agency removed him, effective May 17,
2013, for alleged use of offensive language and tardiness. Elder v. Department of
the Air Force, MSPB Docket No. DA-0752-13-0480-I-1, Initial Appeal File
(0480 IAF), Tab 9 at 17-24. He appealed his removal, raising a claim of
retaliation for whistleblowing, and the parties settled that appeal with an
agreement providing that the appellant would be reinstated, the removal action
would be canceled, and he would serve a 90-day suspension. IAF, Tab 4
at 28-30. The administrative judge entered the agreement into the record for
enforcement by the Board. 0480 IAF, Tab 18, Initial Decision.
¶3 However, in connection with the back pay that resulted from the
agreement, the agency failed to provide the appellant with the opportunity to elect
whether to reinstate his health benefits retroactively. Elder v. Department of the
Air Force, MSPB Docket No. DA-0752-13-0480-C-1, Compliance Appeal File
(0480 C-1 AF), Tab 9 at 5, Tab 12, Compliance Initial Decision (0480 C-1 CID)
at 4-6. Because of this failure, the appellant was incorrectly assessed a debt for
unpaid health benefits premiums, and the Defense Finance and Accounting
Service (DFAS) began deducting from his salary to repay this debt.
0480 C-1 AF, Tab 1 at 3, Tab 9 at 5, 8-9, 15-16; 0480 C-1 CID at 4-6. The
appellant subsequently filed a petition for enforcement when the problems
were not corrected. 0480 C-1 AF, Tab 1. The administrative judge granted the
petition, finding that the agency was not in compliance with the agreement’s
provisions relating to back pay. 0480 C-1 CID at 1, 6.
¶4 Because the agency continued to collect from the appellant’s sala ry to
repay a debt for unpaid health benefits premiums, the appellant filed a second
petition for enforcement. Elder v. Department of the Air Force, MSPB Docket
No. DA-0752-13-0480-C-2, Compliance Appeal File (0480 C-2 AF), Tab 1,
Tab 12, Compliance Initial Decision (0480 C-2 CID) at 2, 4-5. While the
3
appellant’s petition was pending, the agency’s representative and the appellant
met in the agency’s Legal Office on October 22, 2014, for a telephonic
conference with a representative from DFAS to discuss the compliance issues.
IAF, Tab 9 at 16, 54. The appellant advised his supervisor, G.W., of this meeting
in advance. Id. at 45. During the conference, the appellant became frustrated
because he believed that the back pay problems were not adequately addressed by
DFAS or the agency’s representative. Id.
¶5 Following the meeting, the appellant left the Legal Office and returned to
his desk, where he continued to try to work with the Legal Office and DFAS to
reach a solution. Id. at 16, 36, 45, 54. He twice called the Legal Office asking to
know the name and contact information of the second-level supervisor of the
agency’s representative. Id. at 54. Because the agency disconnected the calls, he
returned to the Legal Office lobby. Id. at 16, 19, 22, 25, 28, 54. There, he
requested the same information. Id. at 54. After the appellant spoke with a
number of agency employees, the Staff Judge Advocate (SJA) instructed the
appellant to leave, and he did so. Id. at 19, 22, 25, 54. He then returned,
requested the name of the SJA from a Legal Clerk at the front desk, and left
again. IAF, Tab 4 at 25, Tab 9 at 31. Because he was in the Legal Office from
approximately noon to 1:30 p.m., he was not at his duty station during this period.
IAF, Tab 9 at 36, 45.
¶6 The previous day, on October 21, 2014, the appellant had a disagreement
with a Section Chief at his worksite. Id. at 33, 51. The appellant heard the
Section Chief discussing a problem with another electrician and attempted to
offer a solution. Id. After a brief discussion, the Section Chief told the appellant
that he did not appreciate his tone of voice. Id. The appellant left, then returned
and told the Section Chief that he “hope[d] he [did] not need [the appellant’s]
opinion in the future. With the way he treated [the appellant] he [would] not get
it.” Id. at 51.
4
¶7 On October 27, 2014, G.W. presented the appellant with three separate
Discussions of Incident or Delinquency, on Air Force (AF) Form 971s, regarding
the events of October 21 and 22, 2014. Id. at 44, 48, 50, 53. On October 28,
2014, G.W. was not available at the beginning of the appellant’s shift. Id.
at 36-37, 48. Therefore, the appellant informed his Work Leader that he would be
“out of pocket for most of the day . . . formulating [his] responses” to the AF
Form 971s. Id. Subsequently, the appellant was not at his duty station for
approximately 5 hours that day. Id. at 47.
¶8 On November 18, 2014, the agency proposed the appellant’s removal based
on charges of (1) leaving the job site without permission/unauthorized absence
and (2) inappropriate conduct. IAF, Tab 4 at 24-26. Regarding the charge of
leaving the job site without permission/unauthorized absence, the agency alleged
that the appellant was absent from his worksite for 1.5 hours on October 22,
2014, and for 5 hours on October 28, 2014, and his “whereabouts could not be
accounted for.” Id. at 24. Regarding the inappropriate conduct charge, the
agency alleged that the appellant acted inappropriately during the incidents on
October 21, 2014, with the Section Chief, and on October 22, 2014, in the Legal
Office lobby. Id. at 25-26. The appellant responded in writing to the proposal
notice. IAF, Tab 9 at 61-62.
¶9 On December 17, 2014, the administrative judge issued an initial decision
granting the appellant’s second petition for enforcement of the settlement
agreement in his prior Board appeal. 0480 C-2 CID. She found that the agency
still was not in compliance with the Board’s final decision. Id. at 2, 5. One day
later, in a decision letter dated December 18, 2014, the agency removed the
appellant, effective December 19, 2014. IAF, Tab 4 at 20-22. The appellant filed
this appeal, disputing the basis for his removal and alleging that it was in reprisal
for his prior Board appeal. IAF, Tab 1 at 4-5.
¶10 The Board’s regional office docketed the appeal, and an administrative
judge issued an acknowledgment order. IAF, Tab 2. The order stated, in
5
pertinent part, that within 20 calendar days the agency was to provide
“all . . . documents . . . which are relevant and material to this appeal” and any
other information required by 5 C.F.R. § 1201.25. IAF, Tab 2 at 6, 8. The
agency’s responsive pleading contained only the following documents directly
relevant to the charges: the settlement agreement of the appellant’s prior appeal,
the proposal notice, the decision letter, and the Standard Form 50 (SF-50)
implementing the appellant’s removal. IAF, Tab 4.
¶11 Because the appellant did not request a hearing, the administrative judge
issued an order providing the parties with deadlines for final written submissions.
IAF, Tab 1, Tab 5 at 1, Tab 8. She advised the agency that because it failed to
comply with the acknowledgment order when it did not furnish any evidence in
support of its charges, any submission of such evidence would require a showing
that the evidence was not previously available. IAF, Tab 8 at 2.
¶12 On April 30, 2015, the day before the record closed on appeal, the agency
submitted 9 sworn statements, all signed on April 28 or 29, 2015, more than
5 months after the date of the proposal notice, and more than 3 months after the
acknowledgment order was issued. IAF, Tab 9. The agency also submitted
copies of the AF Form 971s relevant to the incidents underlying the appellant’s
removal. Id. In addition, the agency provided the appellant’s responses to the AF
Form 971s, his written response to the proposal notice, and a written summary of
the deciding official’s Douglas factors penalty considerations. Id.; see
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a
nonexhaustive list of factors relevant to determining the appropriateness of a
penalty for misconduct). However, the agency failed to provide any explanation
as to why these documents were not submitted earlier in compliance with the
instructions in the acknowledgment order. IAF, Tab 9 at 4-7. Instead, it argued
that the documents were relevant hearsay evidence. Id. at 5.
¶13 Despite the agency’s failure to explain its late submission of this evidence,
the administrative judge considered it. IAF, Tab 14, Initial Decision (ID) at 5.
6
She issued an initial decision reversing the removal and finding that the agency
retaliated against the appellant for his prior Board activity under 5 U.S.C.
§ 2302(b)(9). ID at 1, 16-18.
¶14 As to charge 1, the administrative judge found that the appellant had
informed his supervisors that he would be absent for work-related business on
October 22 and 28, 2014. ID at 5-8. Therefore, she did not sustain the charge.
ID at 8. She also did not sustain charge 2. ID at 8-16. Concerning the
appellant’s exchange with the Section Chief on October 21, 2014, the
administrative judge credited the appellant’s denial that he was loud and
demonstrative, as charged, over the description of the incident provided by the
Section Chief. ID at 10. As to the appellant’s behavior in the Legal Office lobby
on October 22, 2014, she found that the agency failed to prove that the appellant
behaved inappropriately under the circumstances. ID at 15-16. In making her
findings regarding the second charge, the administrative judge generally gave less
weight to the agency’s statements than the appellant’s statement, which was
completed shortly after the incident. ID at 8-16. In so doing, she considered a
number of factors, including the fact that the agency’s statements were submitted
long after the events in question. ID at 10-11, 14-15.
¶15 The administrative judge granted corrective action on the appellant’s
affirmative defense of reprisal for protected activity, i.e., appealing his prior
removal and filing two petitions for enforcement. ID at 16-18. In so doing, she
applied the standard set forth in Warren v. Department of the Army, 804 F.2d 654,
656-58 (Fed. Cir. 1986), superseded in part by statute as stated in Alarid,
122 M.S.P.R. 600, ¶ 15. 1 ID at 16. She determined that it was more likely true
1
Under Warren, for an appellant to prevail on a contention of illegal retaliation, he has
the burden of showing that: (1) a protected disclosure was made; (2) the accused
official knew of the disclosure; (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. Warren, 804 F.2d at 656-58.
7
than untrue that, but for the appellant’s prior protected activity, he would not
have been removed. 2 ID at 18.
¶16 The agency has filed a petition for review, primarily challenging the weight
the administrative judge gave to the evidence and her credibility determinations .
Petition for Review (PFR) File, Tab 1. The appellant has responded to the
petition for review, and the agency has replied. PFR File, Tabs 3, 5.
¶17 In addition, the appellant has filed a petition for enforcement of the initial
decision’s interim relief order. PFR File, Tab 6. The agency has replied to the
petition for enforcement, and the appellant has responded. PFR File, Tabs 7-8.
ANALYSIS
We decline to dismiss the petition for review based on the agency’s
noncompliance with the order for interim relief.
¶18 When, as here, the appellant was the prevailing party in the initial decision
and interim relief was ordered, a petition for review filed b y the agency must be
accompanied by a certification that the agency has complied with the interim
relief order, either by providing the interim relief ordered, or by making a
determination that returning the appellant to the place of employment would
cause undue disruption to the work environment. Ayers v. Department of the
Army, 123 M.S.P.R. 11, ¶ 6 (2015); 5 C.F.R. § 1201.116(a); see 5 U.S.C.
§ 7701(b)(2)(A)(ii). However, if an agency makes a determination that an
employee will pose an undue disruption, it nonetheless must return the employee
to a pay status pending the outcome of its petition for review. 5 U.S.C.
§ 7701(b)(2)(B); Erickson v. U.S. Postal Service, 120 M.S.P.R. 468, ¶ 9 (2013).
2
The administrative judge also indicated that the deciding official did not consider any
mitigating circumstances. ID at 18. In context, we interpret her statement as reflecting
a valid concern that the deciding official essentially discounted the u nusual job tensions
caused by the agency’s continued failure to resolve the back pay issues arising out of
the settlement agreement of the appellant’s prior removal appeal. IAF, Tab 9 at 65.
8
¶19 With its petition for review, the agency stated that it returned the appellant
to work, although it temporarily reassigned him to another position based on its
determination that returning him to his assigned position would be unduly
disruptive. PFR File, Tab 1 at 4, Tab 7 at 9. In his petition for enforcement, the
appellant does not challenge his temporary work assignment, but contends that he
has not been properly paid since returning to work. PFR File, Tab 6. Although
the agency admits that the appellant’s pay was initially delayed, it has provided
evidence that he has since been paid. PFR File, Tab 7 at 5-8. In reply, the
appellant argues that his pay should have begun on the day the initial decision
was issued, his rate of pay is too low, and he has “not been counseled on health
insurance or [the Thrift Savings Plan].” PFR File, Tab 8 at 4-5.
¶20 The appellant’s petition for enforcement is denied because the Board’s
regulations do not allow for a petition for enforcement of an interim relief order.
Ayers, 123 M.S.P.R. 11, ¶ 7; see 5 C.F.R. § 1201.182(a)-(b). We may instead
consider the appellant’s pleading as a challenge to the agency’s certification of
compliance. 5 C.F.R. § 1201.116(b). Ordinarily, when an appellant challenges
the agency’s certification of compliance with an interim relief order, the Board
will issue an order affording the agency the opportunity to submit evidence of
compliance. Id. If the agency fails to provide evidence of compliance in
response to such an order, the Board may, at its discretion, dismiss the agency’s
petition for review. 5 C.F.R. § 1201.116(e). In this case, however, we find that
the agency’s petition does not meet the criteria for review in any event, and the
issuance of our final decision renders moot any dispute concerning the agency’s
compliance with the interim relief order. See Ayers, 123 M.S.P.R. 11, ¶ 8
(reaching the same conclusion where the Board affirmed the administrative
judge’s reversal of the appellant’s removal based on whistleblower reprisal). If
the appellant believes that the agency is in noncompliance with the Board’s final
order, he may file a petition for enforcement in accordance with the instructions
provided below. See id.
9
The administrative judge properly found that the agency failed to prove
its charges.
¶21 In disputing the administrative judge’s findings regarding the charges, the
agency primarily disagrees with the weight she gave to its evidence. E.g.,
PFR File, Tab 1 at 10-11, 13, 16. If, as here, an administrative judge’s findings
are not based on the observation of witnesses’ demeanor, the Board is free to
reweigh the evidence and substitute its own judgment on credibility issues.
Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002). We have
reviewed the record evidence, but nonetheless find that the administrative judge
properly weighed the evidence.
¶22 Because no hearing was held, the administrative judge applied the relevant
factors in weighing the parties’ hearsay evidence. ID at 4-5; Borninkhof v.
Department of Justice, 5 M.S.P.R. 77, 87 (1981) (listing the following factors as
affecting the weight to be accorded to hearsay evidence: (1) the availability of
persons with firsthand knowledge to testify at the hearing; (2) whether the
statements of the out-of-court declarants were signed or in affidavit form, and
whether anyone witnessed the signing; (3) the agency’s explanation for failing to
obtain signed or sworn statements; (4) whether the declarants were disinterested
witnesses to the events, and whether the statements were routinely made; (5) the
consistency of the declarants’ accounts with other information in the case,
internal consistency, and their consistency with each other; (6) whether
corroboration for statements can otherwise be found in the agency record; (7) the
absence of contradictory evidence; and (8) the credibility of the declarant when
he made the statement attributed to him). The agency asserts that the
administrative judge erred when she did not give greater weight to the statements
it included with its April 30, 2015 close-of-record submission than to the
appellant’s statements. PFR File, Tab 1 at 13. It argues that its witness
statements are entitled to this weight because they are sworn, internally
10
consistent, and consistent with the AF Form 971s. 3 Id. However, the appellant,
like the agency, submitted a sworn statement with his close-of-record submission.
IAF, Tab 11 at 3-5. Further, his sworn close-of-record statement was consistent
with his prior statements, including his responses to the AF Form 971s. IAF,
Tab 9 at 45, 48, 51, 54, 61-62. Therefore, we are not persuaded that the agency’s
statements are entitled to greater weight.
¶23 The agency next argues that the administrative judge erred in finding that it
did not comply with the acknowledgment order, and as a result incorrectly gave
“virtually no weight” to the witness statements submitted by the agency on
April 30, 2015. PFR File, Tab 1 at 10, 12, 16. The administrative judge found
that the agency failed to comply with the acknowledgment order because it
did not submit all documents relevant and material to the appeal. ID at 3. The
agency claims that the acknowledgment order contained “ no such order!” PFR
File, Tab 1 at 11 (emphasis in original). We disagree. The acknowledgment
order required the agency to submit such evidence within 20 days. IAF, Tab 2
at 6, 8. Further, the Board’s regulations similarly mandate that an agency submit
all documents contained in its record of the action within 20 days of the
docketing of an appeal. 5 C.F.R. §§ 1201.22(b), .25(c).
¶24 Notwithstanding the agency’s failure to timely submit this evidence, and its
failure to comply with the administrative judge’s order to show that any new
evidence was not previously available, the administrative judge considered the
agency’s April 30, 2015 close-of-record submission. IAF, Tab 8 at 2, Tab 9
3
The administrative judge found that the accuracy of the stat ement of one agency
witness was questionable because, in part, it was internally inconsistent and
inconsistent with the statement of another agency witness. ID at 14; IAF, Tab 9
at 19, 22. For the first time in its reply to the appellant’s response to th e petition for
review, the agency disputes this finding. PFR File, Tab 5 at 11-12. We decline to
consider this argument, as well as others that the agency raises for the first time in its
reply. See 5 C.F.R. § 1201.114(a)(4) (limiting a reply to a response to a petition for
review to the factual and legal issues raised in the response).
11
at 4-7; ID at 3-5. She assigned statements from agency witnesses less weight
than that of the appellant’s contemporaneous responses to the AF Form 971s. ID
at 9-10, 14. We find assigning greater weight to the appellant’s statements
because they were completed closer in time to the events in question was
appropriate. See United States v. U.S. Gypsum Co., 333 U.S. 364, 396 (1948)
(finding that testimony that conflicted with contemporaneous documents was
entitled to “little weight”).
¶25 The agency also argues that the administrative judge was required to credit
the agency’s statements because they were completed by disinterested witnesses.
PFR File, Tab 1 at 13, 17. We disagree. To resolve credibility issues, an
administrative judge must consider relevant factors, which include a witness’s
bias or lack of bias. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
(1987) (listing these and other factors to be considered). However, the Board
will not discredit an appellant’s testimony solely because it can be characterized
as self-serving. See Thompson v. Department of the Army, 122 M.S.P.R. 372,
¶ 25 (2015) (observing that most testimony that an appellant is likely to give can
be characterized as self-serving and finding that it is improper to discredit it
solely on that basis). Further, we decline to find that other witnesses, such as the
appellant’s supervisor, the deciding official, and staff from the agency’s Legal
Office, had no interest in the outcome of the appeal. See id. (observing that a
supervisor who proposed an appellant’s removal may have an interest in the
outcome of the resulting Board appeal). All of these individuals would, for
different reasons, have an interest in ensuring the agency’s success in this appeal.
¶26 We also are not persuaded that the administrative judge should have found
the appellant less than credible because his submissions allegedl y contain “an
obvious falsehood . . . that there was an oral agreement in his previous appeal.”
PFR File, Tab 1 at 9, 13. Assuming, without deciding, that the appellant’s
representation regarding an oral agreement was incorrect, we decline to infer that
any error was deliberate. The appellant was, and remains, pro se. IAF, Tab 1
12
at 4. He references an oral agreement reached during “settlement talks with [the
administrative judge]” that his “previous record . . . would be cleared.” IAF,
Tab 11 at 4. His statements appear to reflect, at most, a misunderstanding
regarding the settlement process. We find that they do not justify an inference
of dishonesty.
¶27 The agency has the burden of proving its charges by preponderant
evidence. 5 C.F.R. § 1201.56(b)(1)(ii). As discussed below, we affirm the
administrative judge’s finding that the agency failed to prove its charges.
Charge 1: Leaving the job site without permission/unauthorized absence
¶28 To prove a charge of unauthorized absence, the agency must demonstrate
that the employee was absent and that his absence was unauthorized or that his
request for leave was properly denied. 4 Smith v. Department of the Interior,
112 M.S.P.R. 173, ¶ 9 (2009). The following findings are not disputed. During
the 1.5 hours that the appellant was allegedly absent without authorization on
October 22, 2014, he was in the lobby of the Legal Office attempting to address
the back pay issues that arose from the settlement agreement in his prior appeal.
ID at 6-7; IAF, Tab 9 at 36, 45, 61. In addition, G.W. previously had granted the
appellant permission to meet with the Legal Office that day. ID at 6-7; IAF,
Tab 9 at 36, 45. Further, during the 5 hours the appellant allegedly was absent on
October 28, 2014, he was responding to the AF Form 971s that G.W. presented to
him the previous day. ID at 7; IAF, Tab 9 at 36, 48. In G.W.’s absence that
4
We find that the charge of leaving the job site without permission merges with the
unauthorized absence charge, and therefore we will not separately address it. See
Hawes v. Office of Personnel Management, 122 M.S.P.R. 341, ¶ 6 (2015) (finding that
an administrative judge appropriately merged charges based on the same set of
underlying facts); McNab v. Department of the Army, 121 M.S.P.R. 661, ¶ 4 n.3 (2014)
(finding that an administrative judge properly merged specific absences that were listed
under both an absence without leave charge and a charge of failure to follow leave
restriction letter procedures).
13
morning, the appellant advised his Work Leader in advance that he would be
responding to the AF Form 971s. ID at 6-7; IAF, Tab 9 at 36-37, 48.
¶29 However, the agency disputes that the appellant’s activities were
authorized. PFR File, Tab 1 at 16. In this regard, it argues that the
administrative judge required the agency to prove the existence of a procedure
requiring advance permission for “duty time” or “official time.” Id. at 14-15. It
argues that, in any event, it established the existence of an unwritten policy
through its table of penalties, G.W.’s statement, the AF Form 971s, and the
appellant’s prior discipline. Id. at 15-16.
¶30 We disagree with the agency that the administrative judge found that it was
required to prove the existence of an official time procedure. Instead, she
properly considered the lack of a written procedure in weighing the evidence. ID
at 6-7; see Borninkhof, 5 M.S.P.R. at 87. As she observed, the absence of a
written procedure weighed against the agency’s claim that the appellant was
required to make a second request for official time after returning to his worksite
on October 22, 2014, and before returning to the Legal Office lobby. ID at 6. It
also weighed against the agency’s claim that the appellant’s Work Leader
could not approve the appellant’s request for official time on October 28, 2014. 5
ID at 7.
¶31 The documents that the agency cites on review support the conclusion that
approval is required for leaving the jobsite and for official time. PFR File, Tab 1
at 15-16; IAF, Tab 4 at 44, Tab 9 at 44, 47. However, other than G.W.’s
late-submitted statement, the weight of which we already have addressed above,
5
The agency argues that the administrative judge erred in considering its attendance
policy regarding unscheduled leave. PFR File, Tab 1 at 4; ID at 7-8. We find that she
appropriately weighed the appellant’s compliance with this policy on October 28, 2014,
as evidence supporting the appellant’s claim that he properly advised his Work Leader
that he would be working on his responses to the AF Form 971s on that day. Id.; IAF,
Tab 11 at 7; see Borninkhof, 5 M.S.P.R. at 87.
14
they do not establish that the manner in which the appellant requested permission
on October 22 and 28, 2014, was improper. IAF, Tab 4 at 44, Tab 9 at 44, 47.
¶32 Therefore, we agree with the administrative judge that the agency failed to
prove that the appellant’s alleged absences on October 22 and 28, 2014, were
unauthorized. As a result, we also agree that the agency did not prove its
unauthorized absence charge. Additionally, although the agency claims that the
administrative judge incorrectly remembered her prior findings reg arding its
noncompliance, we do not agree.
Charge 2: Inappropriate conduct
¶33 In finding that the agency failed to prove that the appellant engaged in
inappropriate conduct on October 21, 2014, during an exchange with the Section
Chief, the administrative judge gave greater weight to the appellant’s statement
completed a week after the incident than the Section Chief’s statement completed
6 months later. IAF, Tab 9 at 33, 51. Although the agency argues that the
Section Chief was a disinterested coworker, it provides no first-hand evidence to
support this claim. 6 PFR File, Tab 1 at 16. In addition, as the administrative
judge found, the agency failed to provide a statement from the electrician who
was present during the incident. ID at 10; IAF, Tab 4 at 24. Therefore, we find
that the administrative judge appropriately weighed the evidence. Borninkhof,
5 M.S.P.R. at 87.
¶34 The administrative judge also found that the agency failed to prove that the
appellant engaged in inappropriate conduct during the October 22, 2014 incident
in the Legal Office lobby. ID at 10-16. Instead, she found that the appellant,
6
In a subsequent submission on review, the agency provided a statement from the
deciding official that the Section Chief was not in the appellant’s chain of command,
had no interest in his removal, and “no reason to malign” the appellant. PFR File,
Tab 11 at 20. However, the Section Chief did not explain his relationship to the
appellant in his statement on appeal. IAF, Tab 9 at 33.
15
although frustrated by the agency’s continued noncompliance with the settlement
agreement reached in his prior appeal, credibly explained that he was calm and
was only seeking information related to the ongoing compliance issues. ID
at 13-14; IAF, Tab 9 at 54, 61.
¶35 The agency argues that the administrative judge’s findings were “ tainted by
her erroneous recollection of the appellant’s prior case.” PFR File, Tab 1 at 10.
Specifically, the agency argues that the administrative judge’s recitation of the
facts was inaccurate when she found that the agency did not comply with the
settlement of the appellant’s prior Board appeal because it did not complete a
DFAS checklist. Id. The agency further contends that the administrative judge
erred by stating that there was a finding of agency noncompliance with the
settlement agreement. Id.
¶36 As the agency observes, in the initial decision in the instant appeal, the
administrative judge described the agency’s noncompliance that led to the
October 22, 2014 meeting as arising out of its failure to complete a DFAS
checklist. ID at 2. This was in error because there was no DFAS checklist
attached to the initial decision in the appellant’s prior appeal. 0480 IAF, Tab 18,
Initial Decision. However, we find that the administrative judge’s alleged error
does not provide a basis for granting review. Although the Board may grant a
petition for review based on a factual error, such error must be material. 5 C.F.R.
§ 1201.115(a)(1). A material error is one that is of sufficient weight to warrant
an outcome different from that of the initial decision. Id.
¶37 Contrary to the agency’s claims that “there was . . . no finding that the
agency was not in compliance with the agreement,” the administrative judge
granted the appellant’s petition for enforcement of the settlement agreement in his
prior appeal due to the agency’s erroneous withholding of health benefits
premiums from his back pay. 0480 C-1 CID at 4-6; PFR, Tab 1 at 7. In addition,
at the time of the appellant’s conference in the Legal Office on October 22, 2014,
DFAS was continuing to collect for a debt related to health benefits premiums,
16
but was unable to provide an understandable explanation of this debt. 0480 C-2
AF, Tab 1; 0480 C-2 CID at 4-5; IAF, Tab 9 at 54.
¶38 In any event, the administrative judge’s finding that the agency failed to
prove the alleged misconduct on October 22, 2014, was based on her
determination that the appellant’s statement regarding the incident was credible.
ID at 14. It was not based on her finding of the agency’s noncompliance with the
settlement agreement in the prior appeal.
We affirm the finding that the agency retaliated against the appellant for his prior
Board appeals, as modified to apply the proper standard.
¶39 In its petition for review, the agency did not challenge the administrative
judge’s determination that the agency’s removal action was retaliation for
protected activity. Nevertheless, we found that the administrative judge relied on
the burden of proof set forth in Warren, 804 F.2d at 656-58, in both the order and
summary of the close-of-record conference and the initial decision. IAF, Tab 8
at 2; ID at 16. The Warren 7 standard is inapplicable to claims, like the one here,
that allege reprisal for filing a prior Board appeal under 5 U.S.C.
§ 2302(b)(9)(A)(i). 8 See 5 U.S.C. § 1221(e); Clay v. Department of the Army,
123 M.S.P.R. 245, ¶ 10 (2016) (finding that a retaliation claim arising under
section 2302(b)(9)(A)(i) should be analyzed under section 1221(e), rather than a
general reprisal standard). Instead, the reprisal claim must be analyzed under the
burden-shifting standards set forth in section 1221(e). Alarid, 122 M.S.P.R. 600,
7
Although Warren has not been overruled by the U.S. Court of Appeals for the Federal
Circuit, the statutory changes of the Whistleblower Protection Enhancement Act of
2012 significantly narrow the scope of cases to which it applies. Alarid, 122 M.S.P.R.
600, ¶ 15.
8
Section 2302(b)(9)(A)(i) prohibits retaliation for vario us protected activity including,
among other things, filing a Board appeal “with regard to remedying a violation of
[section 2302(b)(8)],” i.e., it prohibits retaliation for filing a Board appeal in which a
claim of whistleblower retaliation was raised under 5 U.S.C. § 2302(b)(8).
17
¶ 12. In such cases, the appellant first must establish by preponderant evidence
that he engaged in protected activity that was a contributing factor in the
personnel action at issue. Id., ¶¶ 13-14. If he does so, the burden of persuasion
shifts to the agency to prove by clear and convincing evidence that it would have
taken the same action in the absence of the appellant’s protected activity. Id.,
¶ 14.
¶40 Here, because the appellant raised a claim that the agency’s removal action
was in retaliation for the filing of his prior Board appeal, which included a
whistleblower retaliation claim under 5 U.S.C. § 2302(b)(8), and his filing of two
separate petitions for enforcement with the Board, the proper analysis of thi s
claim is as a prohibited personnel practice under section 2302(b)(9)(A)(i). IAF,
Tab 8 at 1, Tab 11 at 4. Accordingly, we find that the administrative judge
should have apprised the parties of the burdens of proof under section 1221(e).
While the case was pending on review, we issued an order to the parties setting
forth the proper standards for analyzing the appellant’s reprisal claim and
instructing the parties to provide evidence and argument consistent with these
burdens. PFR File, Tab 9. The agency and the appellant have responded. PFR
File, Tabs 11-12.
¶41 The agency’s response challenges the administrative judge’s finding that
the appellant met his burden to prove that he engaged in protected activity that
was a contributing factor in his removal. E.g., PFR File, Tab 11 at 12-13. The
administrative judge found in pertinent part that the deciding official was aware
of the appellant’s 2013 and 2014 protected activity when he made his removal
decision in 2014. ID at 2-3, 16-17. We see no reason to disturb these factual
findings on review, given the similarity in the Warren standard cited by the
administrative judge and the appellant’s initial burden under section 1221(e).
Compare Warren, 804 F.2d at 656-58 (setting forth the Warren standard), with
Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶¶ 18, 21 (2015)
(explaining that the knowledge/timing test allows an employee to demonstrate
18
that a protected disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official taking the personnel
action knew of the disclosure, and that the personnel action occurred within 1 to
2 years of the appellant’s disclosures); Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980) (finding that the Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence). Therefore, we decline to consider the agency’s new arguments
and evidence to the extent that they concern the appellant’s prima facie case of
reprisal for protected activity.
¶42 However, because the Warren standard lacks a similar element, we have
considered the agency’s response to the extent that it addresses its burden to
prove by clear and convincing evidence that it would have taken the same action
in the absence of the appellant’s protected activity, i.e., the appellant’s prior
Board appeal alleging whistleblowing retaliation and the subsequent compliance
matters. Clear and convincing evidence “is that measu re 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.” 5 C.F.R. § 1209.4(e). It is a higher standard than
preponderant evidence. McCarthy v. International Boundary and Water
Commission, 116 M.S.P.R. 594, ¶ 43 (2011), aff’d, 497 F. App’x 4 (Fed. Cir.
2012). In determining whether the agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
protected activity, the Board generally will consider the following factors:
(1) the strength of the agency’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of the agency’s officials who
were involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who did not engage in protected activity but who are
otherwise similarly situated. See Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999); Alarid, 122 M.S.P.R. 600, ¶ 14. The Board
19
must consider all pertinent record evidence in making this determination.
Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012);
Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 25 (2012). The Board
does not view these factors as discrete elements, each of which the agency must
prove by clear and convincing evidence. Phillips v. Department of
Transportation, 113 M.S.P.R. 73, ¶ 11 (2010). Rather, the Board will weigh the
factors together to determine if the evidence is clear and convincing as a
whole. Id.
¶43 Here, the strength of the agency’s evidence in support of its removal action
is weak and, as noted above, was in large part prepared well after the fact . As we
found above, after considering all of the evidence, the administrative judge
correctly found that the agency did not prove either of the charges against the
appellant. Furthermore, the agency’s delay in taking any sworn witness
statements concerning the appellant’s alleged actions until more than 5 months
after the proposal notice had been issued—in addition to raising serious due
process concerns—strongly suggests that: (1) it did not consider the appellant to
have engaged in serious misconduct; and (2) the charges were a pretext
for reprisal.
¶44 In addition, we find that G.W., who proposed the appellant’s removal, and
the deciding official both had a strong motive to retaliate. Although G.W.
was not involved in the removal that led to the appellant’s prior Board appeal , he
was aware, as the appellant’s supervisor, of the compliance issues that arose.
PFR File, Tab 11 at 22-23. He claims that the appellant’s conduct, and not his
protected activity, was the reason he proposed the appellant’s removal. Id.
However, we find that his claim that “[i]t had never mattered to me that he’d
actually made an appeal; it’s not like I have no experience with
employer-employee matters like that,” is less than convincing. Id. at 23
(emphasis in original). In particular, G.W.’s inability to prevent the appellant
from visiting the Legal Office lobby, which formed part of the basis of charge 2,
20
reflected on his capacity as a supervisor. Chavez v. Department of Veterans
Affairs, 120 M.S.P.R. 285, ¶¶ 32-33 (2013) (finding that an appellant’s
disclosures of subordinate employees’ wrongdoing created a motive to retaliate
on the part of their first- and second-level supervisors). Further, as we have
found, this visit was related to the agency’s continued noncompliance. As such,
it was protected activity. 5 U.S.C. § 2302(b)(9)(A)(i). G.W.’s retaliatory motive
is reflected in the statement that what “matter[ed] to me was that [the appellant]
acted out, both on the job and over in the Legal Office, i n such a manner so as to
undermine the morale and discipline of my unit and bring discredit to my
organization.” PFR File, Tab 11 at 23.
¶45 The deciding official, moreover, had a strong motive to retaliate. He also
was the deciding official in the removal action that was the subject of the
appellant’s prior Board settlement agreement. PFR File, Tab 11 at 19. In
addition, he has admitted that he “was aware that [the appellant] was frustrated
and unhappy with the legal process regarding his reinstatement ,” and that his
presence in the Legal Office lobby on October 22, 2014, was to seek compliance
with the settlement agreement in the prior Board appeal. PFR File, Tab 11 at 19.
However, he has not explained what steps, if any, he took to resolve the ongoing
compliance issues.
¶46 Finally, the agency claims that it would have removed the appellant in the
absence of the protected activity because his removal was the seventh time he
received discipline. Id. at 26. According to the agency, other employees who
were disciplined multiple times were, like the appellant, removed. Id. at 25-26.
Specifically, the agency asserts that it removed other employees who were
disciplined more than five times for charges including “leaving the job without
permission,” and also removed other employees who were charged with
“discourteous conduct” more than five times. Id. However, the agency does not
provide evidence as to whether or not these employees had, like the appellant,
engaged in protected activity, or any specific information as to the nature of their
21
alleged misconduct. Id. Thus, we find that the third Carr factor is not a
significant factor for the analysis of this case. Runstrom v. Department of
Veterans Affairs, 123 M.S.P.R. 169, ¶ 18 (2016).
¶47 Ultimately, after considering the record as a whole, we find that the agency
has not proven by clear and convincing evidence that it would have removed the
appellant absent his protected activity of filing a prior Board appeal seeking to
remedy a violation of 5 U.S.C. § 2302(b)(8) and the subsequent compliance
actions. See 5 U.S.C. § 2302(b)(9)(A)(i). Therefore, we affirm the initial
decision, as modified by this Opinion and Order.
ORDER
¶48 We ORDER the agency to cancel the appellant’s removal and retroactively
restore the appellant effective December 18, 2014. See Kerr v. National
Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
¶49 We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶50 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board's Order and to describe the
actions it took to carry out the Board’s Order. The appellant, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
22
¶51 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision in this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶52 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
¶53 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 RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the U.S. Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b); or
38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R. §§ 1201.201,
1202.202, and 1201.203. If you believe you meet these requirements, you must
file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE
OF THIS DECISION. You must file your attorney fees motion with the office
that issued the initial decision on your appeal.
23
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. §§ 1214(g)(2), 1221(g)(1)(A)(ii), which
you may also be entitled to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D). 5 U.S.C. § 1221(f)(3).
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.
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
24
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 concern ing 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 the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction to review this final decision. The court of
appeals must receive your petition for review within 60 days after the date of this
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 f rom seeking review in any
other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the court’s
Rules of Practice, and Forms 5, 6, and 11. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through 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
25
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.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift p remium,
Sunday Premium, etc, with number of hours and dates for each entitlement .
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount .
5. Statement if interest is payable with beginning date of accrual .
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable .
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period .
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision .
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.