finding that imprecision detracts from the weight to be accorded evidence
How later courts described this case
- finding that imprecision detracts from the weight to be accorded evidence
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2017 MSPB 3
Docket No. CB-1215-14-0012-T-1
Special Counsel,
Petitioner,
v.
Katherine Coffman,
Respondent.
January 6, 2017
Rachel A. Venier, Esquire, Mariama Liverpool, Esquire, and Clarissa
Pinheiro, Esquire, Washington, D.C., for the petitioner.
Debra L. Roth, Esquire, Julia H. Perkins, Esquire, and Lisa A. Kleine,
Esquire, Washington, D.C., for the respondent.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The Special Counsel has filed a petition for review of the initial decision,
which held that the Special Counsel did not prove the allegations set forth in its
complaint seeking disciplinary action against the respondent. For the following
reasons, we DENY the petition for review and AFFIRM the initial decision,
finding no basis for disciplinary action in this case .
BACKGROUND
¶2 The Special Counsel filed a complaint for disciplinary action against the
respondent, the Deputy Assistant Commissioner for Human Resources
2
Management (HRM) at the U.S. Customs and Border Protection (CBP), U.S.
Department of Homeland Security (DHS), in Washington, D.C., pursuant to
5 U.S.C. §§ 1214(a)(1)(A) and 1215(a)(1), which permit the investigation of
prohibited personnel practices and the filing of this complaint with the Board.
Initial Appeal File (IAF), Tab 1 at 4, 7. The Special Counsel asserted that the
respondent violated 5 U.S.C. § 2302(b)(1)(E) 1 and 5 U.S.C. § 2302(b)(6) 2 when
she participated in the CBP’s extensive efforts in 2010 to hire three candidates
for career appointments who were favored by the recently appointed CBP
Commissioner (the Commissioner). 3 Id. at 5, 11-38. The Special Counsel alleged
that the respondent discriminated in favor of these individuals, who previously
had been political appointees at DHS working with the Commissioner in his
former role at DHS, by approving and certifying the results of three improperly
manipulated competitive civil service packages with knowledge that the actions
were intended to convert the noncareer political appointees to career
appointments. Id. at 5, 8.
¶3 The Special Counsel asserted that, after the Commissioner indicated his
desire to hire the DHS employees in question, individuals within the CBP’s
Indianapolis Hiring Center (IHC) added criteria to the position descriptions and
selective placement factors to the vacancy announcements for the Management
and Program Analyst positions to closely match the experi ences present in the
DHS employees’ résumés, changed one of the applicant’s answers to the
1
Section 2302(b)(1)(E) prohibits discriminating for or against an employee or applicant
on the basis of marital status or political affiliation.
2
Section 2302(b)(6) prohibits the granting of any preference or advantage not
authorized by law, rule, or regulation to any employee or applicant for the purpose of
improving or injuring the prospects of any particular person for employment.
3
The individuals involved in this case are referred to either by their initials, their
position titles, or their roles in the case, rather th an by their full names. See, e.g.,
Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 3 (2016); Ellis v. U.S.
Postal Service, 121 M.S.P.R. 570, ¶ 12 n.5 (2014).
3
qualifying questions to indicate that he possessed the minimum qualifications for
the position, and found that another applicant had senior ‑level knowledge and
experience regarding certain issues despite having only 9 months of experience
working on such issues. IAF, Tab 1 at 11, 14‑17, 26-30, 33‑35. The Special
Counsel asserted that, after the selecting official (a political appointee in the
Commissioner’s office) selected the employees and the respondent approved the
competitive civil service packages—certifying that the proposed actions met all
merit and fitness requirements in 5 U.S.C. §§ 2301 and 2302 and forwarding the
packages to DHS for approval and eventual consideration by the Offic e of
Personnel Management (OPM)—the Chief Human Capital Officer at DHS, J.N.,
disallowed the competitive civil service appointments upon finding them
improper. Id. at 9, 18-19, 30-32, 36-38. 4
¶4 The Special Counsel also asserted that the respondent subsequently took
away the Schedule A appointment authority of M.B., the CBP’s Director of
Executive Services, after M.B. expressed concern about converting one of the
applicants (Applicant A) from a political to a career excepted-service employee
using a special CBP noncompetitive Schedule A appointment authority limited to
10 positions involving oversight policy and directing sensitive law enforcement
activities. 5 Id. at 9, 20-21; IAF, Tab 83, Exhibit (Ex.) 14. The Special Counsel
alleged that the respondent assisted in preparing the Schedule A package, did not
follow the CBP’s internal operating procedures for filling excepted ‑service
4
In November 2009, OPM issued a written mandate, known as the “Berry Memo,”
requiring Federal agencies to obtain OPM approval before appointing a current or
recent political appointee to a competitive or nonpolitical excepted ‑service position
under title 5 of the U.S. Code. IAF, Tab 83, Exhibit 12.
5
At the outset, let us clarify that we are making a distinction in this case between the
three competitive civil service appointments that J.N. did not approve, discussed above,
and the one noncompetitive Schedule A appointment for Applicant A that J.N. did
approve.
4
positions, participated in responding to OPM’s questions about the conversion,
and “helped draft, review and approve [an] embellished description of
[Applicant A’s] qualifications.” IAF, Tab 1 at 21-25. Although J.N. approved
this Schedule A conversion at DHS and forwarded it to OPM, OPM disallowed
the appointment upon finding that Applicant A was not uniquely qualified for the
position and that the appointment was not free of political influence and in
compliance with merit system principles. Id. at 25-26.
¶5 Based on the above allegations, the Special Counsel filed a complaint with
the Board against the respondent based on eight counts of: (1) violating 5 U.S.C.
§ 2302(b)(1)(E) – Political discrimination in the competitive selection of
Applicant A; 5 C.F.R. §§ 4.2, 7.1, 720.901; (2) violating 5 U.S.C.
§ 2302(b)(6) - Unauthorized preference or advantage in the competitive selection
of Applicant A; (3) violating 5 U.S.C. § 2302(b)(1)(E) – Political discrimination
in Schedule A selection of Applicant A; Agency’s Excepted Service Hiring Rule;
(4) violating 5 U.S.C. § 2302(b)(6) – Unauthorized preference or advantage in
Schedule A selection of Applicant A; (5) violating 5 U.S.C.
§ 2302(b)(1)(E) - Political discrimination in the competitive selection of a second
applicant (Applicant B); 5 C.F.R. §§ 4.2, 7.1, 720.901; (6) violating 5 U.S.C.
§ 2302(b)(6) – Unauthorized preference or advantage in the competitive selection
of Applicant B; (7) violating 5 U.S.C. § 2302(b)(1)(E) – Political discrimination
in the competitive selection of a third applicant (Applicant C); 5 C.F.R. §§ 4.2,
7.1, 720.901; and (8) violating 5 U.S.C. § 2302(b)(6) – Unauthorized preference
or advantage in the competitive selection of Applicant C. IAF, Tab 1 at 38-40.
¶6 After an extensive 6-day hearing, an administrative law judge (ALJ)
assigned to this case found that the Special Counsel did not prove any of the
counts in its complaint by preponderant evidence, and therefore imposed no
discipline upon the respondent. IAF, Tab 95, Initial Decision (ID) at 5-6. The
ALJ first found that the Special Counsel had the burden to prove that the
respondent acted with intent. ID at 24-25. He also found that the respondent,
5
despite her arguments to the contrary, was a proper subject of the case because
she had the authority to take, direct others to take, recommend, or approve
personnel actions under 5 U.S.C. § 2302(b) and was an “appointing officer” under
5 C.F.R. §§ 7.1 and 720.901(a). ID at 25-26.
¶7 The ALJ noted that the focus of the Special Counsel’s case against the
respondent was based on (1) the respondent’s April 23, 2010 and May 19, 2010
signatures on three cover letters forwarding to the Chief Human Capital Officer,
J.N., the proposed competitive hiring actions of the three individuals at issue in
this case, and (2) her role in a subsequent effort by the CBP’s HRM to hire
Applicant A using the Schedule A authority. ID at 26. The ALJ found as
follows. The Commissioner instructed his Deputy Commissioner to arrange for
the transfers of the three applicants and the Deputy Commissioner, in turn,
communicated the Commissioner’s wishes to the respondent’s supervisor, the
Assistant Commissioner for HRM, C.G., who reported directly to the
Commissioner on all Human Resources (HR) matters. ID at 27. The
Commissioner personally told C.G., but not the respondent, that he would like to
bring the three applicants to the CBP as long as it was legal and ethical to do so.
Id. C.G. then met with her direct report to begin the process, all of CBP’s
Schedule C political positions already were filled, the Commissioner’s Deputy
Chief of Staff testified that the selecting official repeatedly told him that the
Commissioner wanted to hire the three applicants, and the two individuals in the
CBP hierarchy who were principally involved in the discussions to hire them
were C.G. and M.B., but not the respondent, who was not copied on or referenced
in the email communications between the selecting official and C.G. ID at 28-29.
¶8 The ALJ held that the respondent had been appointed to her position only
7 months before the incidents in question and that the chain of events revealed
that she “had no culpability whatsoever in the events described in the [Office of
Special Counsel (OSC)] complaint.” ID at 28. The ALJ noted that many of the
witnesses called by the Special Counsel testified that the respondent was not
6
involved with either drafting the position descriptions or selective placement
factors, or any other part of the hiring process of the three individuals in
question, that all of the preparatory work for the application packages was
completed in the IHC in Indianapolis, before the respondent reviewed them i n
Washington, D.C., that C.G. testified that she did not recall if she shared with the
respondent the fact that the Commissioner wanted to hire these individuals, and
that the three applicants all testified that they had no contact with or personal
knowledge of the respondent concerning the CBP’s efforts to hire them. ID
at 29-30, 34-35. The ALJ found that the selecting official told a Management and
Program Analyst within the CBP Commissioner’s Office of Policy and Planning
to obtain the résumés of the three individuals to create applications tailored to
them for the purpose of appointing them. ID at 8 n.6, 30, 34-35.
¶9 The ALJ also found that the Special Counsel did not establish how the
three competitive‑service application packages were physically created or
assembled, where they were created or assembled and by whom, and did not
associate the respondent with any material steps taken in that process. ID
at 30-31. The ALJ noted that the Special Counsel’s documentary evidence
omitted the three complete, corporeal, and organized competitive‑service
application packages as they existed on the dates the respondent signed and
forwarded them to DHS for approval. ID at 31. He further found that an HR
Specialist in IHC testified that she drafted and issued the vacancy announcements
for the positions, determined the applicants’ qualifications, and decided that two
of the applicants were not qualified for the positions, but was told by her
superiors—the IHC Director and Deputy Director—to find them qualified. ID
at 31-32; IAF, Tab 1 at 8. The ALJ held that this HR Specialist testified that the
selecting official personally wrote the selective placement factors included in the
vacancy announcements, and that the respondent was not involved in creating
them. ID at 32. The ALJ found that the IHC Director testified that the
7
applications and paperwork were manipulated by someone, probably the selecting
official, that individuals within the Commissioner’s office, including C.G.’s
direct report, pushed IHC in Indianapolis to complete the packages, and that there
was no evidence or testimony that any of that pressure came from the respondent.
ID at 32-34.
¶10 The ALJ noted that, although the respondent signed the cover letters that
forwarded the competitive-service application packages to DHS in Washington,
D.C., “for” C.G., who was “oddly” absent from the office on both dates in
question, the events surrounding the dates of the three letters “not only disprove
Respondent’s culpability, but rather suggest others within CBP engineered the
hiring effort and then attempted to distance themselves from the three
applications and to avoid personal involvement in the process.” ID at 35-36. In
this regard, the ALJ found that C.G., either personally or through others that
did not include the respondent, engineered the three competitive application
packages and Applicant A’s Schedule A package while knowing that those
documents had been manipulated to meet the Commissioner’s objectives, and that
C.G. “conveniently made herself absent on the days the forwarding letters were
signed by Respondent.” ID at 54‑55. Moreover, the ALJ found that the
respondent testified that she was not familiar with the packages of Applicant B
and Applicant C when they came to her for her signature, she had never seen
them before that date and received no advance warning that they were coming
(which was out of the norm), she returned the packages to the agency’s Human
Resources, Office of Policy and Planning (HROPP) to create a table of contents
and arrange the documents in proper order because they were in “disarray,” many
individuals already had “signed off” on preparing the packages, she reviewed th e
packages with HROPP’s former Staffing and Policy Director to ensure all of the
documents required by the OPM checklist were included after she received the
reorganized versions of the packages later that day, and did not read the
individuals’ résumés or the job descriptions included in the packages. ID
8
at 38-40. The ALJ found “highly credible” the respondent’s testimony that she
relied on the expertise of the subject matter experts who prepared the packages.
ID at 40-41.
¶11 The ALJ also found credible the respondent’s testimony that Applicant A’s
competitive application package, which arrived for her si gnature on a subsequent
date when C.G., the respondent’s supervisor, was on leave, contained a “couple
hundred” pages, including the vacancy announcement, the position description,
and a 1-page addendum concerning selective placement factors. ID at 41-42.
The ALJ found that the respondent signed the package after reviewing it with the
former Staffing and Policy Director using an appropriate checklist to ensure that
the package was complete, and she did not read every page because it appeared to
her that the IHC staffing specialists had completed their tasks and made the
qualification determinations for the applicants. ID at 42.
¶12 The ALJ ultimately found that the Special Counsel did not produce any
evidence showing that the respondent was motivated by any p olitical factor when
she signed the certifications accompanying the competitive ‑service application
packages, or that the Commissioner wanted the three applicants transferred to the
CBP because of their political affiliation. ID at 14-15, 43, 57-59. Rather, the
ALJ found that the Commissioner wanted them transferred to the CBP because of
their knowledge, skill, trustworthiness, and how they had performed for him
previously at DHS. ID at 27, 59. The ALJ held that the Special Counsel did not
produce any evidence that the respondent’s having signed the certifications was
an attempt to take or direct others to take, recommend, or approve any personnel
action that discriminated for or against any employee or applicant for
employment on the basis of political affiliation or that granted any unauthorized
preference or advantage for the purpose of improving or injuring the prospects of
any particular person for employment. ID at 43. In this regard, the ALJ noted
that counsel for the Special Counsel had called the respondent as a witness to
9
support its case, stated during the hearing that it could not win its case without
the respondent’s potentially damaging testimony, and then devoted its
post-hearing brief to impugning her credibility. Id.
¶13 The ALJ further held that, because the Special Counsel called the
respondent as part of its case-in-chief, her statements had a direct bearing on
whether the Special Counsel met its burden of proof. Id. He found that the
respondent’s testimony not only did not establish that she intentionally violated a
statute or regulation, but actually disproved any such violation occurred because
she “clearly established that she played no role, either directly or indirectly, in
either the creation of the three vacancy announcements, position descriptions,
résumés, and/or the competitive or Schedule A application packages,” established
her good faith reliance upon the professionals within HRM to complete work, and
“refuted any notion that her actions in this case, albeit miniscule, h ad [anything]
to do with either politics or a desire to grant an unlawful preference to anyone.”
ID at 43-44. In this regard, the ALJ agreed with the testimony of J.N., DHS’s
Chief Human Capital Officer—who oversaw all HR departments at DHS
component agencies including the CBP—that it was reasonable for the respondent
to rely upon subordinate HRM personnel to correctly assemble and present the
three competitive‑service application packages for her review and signature. ID
at 7, 44, 52. The ALJ found that C.G., either personally or through others
exclusive of the respondent, “engineer[ed]” the application packages, and that,
perhaps purposefully, the respondent was kept out of the loop until the last
moment in all crucial communications related to process ing these three
application packages, when her signature was needed. ID at 52-56. The ALJ
found the testimony of J.N., DHS’s Chief Human Capital Officer, particularly
credible based on his demeanor and his 33 years of Federal HR experience. ID
at 52-53.
¶14 The ALJ noted that J.N. testified that he thought the three competitive
application packages were a “joke.” J.N. testified that the job descriptions and
10
selective placement factors had been modified on the same day, he believed this
indicated that someone may have manipulated the paperwork to ensure that the
three applicants were placed into the career track of the competitive service, and
he felt two of the applicants were not qualified for the positions. ID at 44‑45.
The ALJ found that J.N. testified that he then told C.G. and the respondent of his
displeasure with the way the packages had been created, and that the respondent
appeared “mortified” by the discussion, while C.G. did not seem upset in the
least, suggesting that C.G. either orchestrated, or was well aware of, the
manipulation, ID at 45‑46. The ALJ further held that J.N. testified that he
was not surprised that C.G. was curiously absent on the dates the respondent
signed the letters, he did not trust C.G., he did not believe the respondent was the
“mastermind of this thing,” and the respondent was not part of C.G.’s “team of
people” who typically “did stuff like this.” ID at 46. The ALJ found that, after
the meeting with J.N., the respondent asked the former Staffing and Policy
Director—who also had reviewed the packages—if she had had any concerns
about them, and she responded that she did have concerns about Applicant B and
his qualifications. ID at 55. The respondent then asked her “[w]hy didn’t you
tell me?” Id. The ALJ found that the former Staffing and Policy Director
responded that she had raised her concerns with her supervisor who had
overridden them, and that she did not inform the respondent of her concerns
because she had followed her chain of command, which had “failed her .” Id.
The ALJ held that, by this supervisor being informed about such concerns, C.G.
also was notified, because this supervisor was C.G.’s “direct report,” all of which
supported a finding that the respondent was kept “out of the loop” on all crucial
communications regarding the processing of these packages. ID at 55-56.
¶15 Regarding the Schedule A hiring process for Applicant A, the ALJ found
that M.B., the CBP’s Director of Executive Services, received her guidance
directly from C.G.; the respondent relayed to C.G. that M.B. refused to partake of
11
the Schedule A hiring process; the respondent was not referenced or included in
subsequent discussions regarding using such authority to hire Applicant A; and
the respondent did not participate in a conference convened by C.G. to discuss
creating and processing Applicant A’s Schedule A package, thus undermining the
Special Counsel’s assertion that the respondent “participated in a scheme
involving multiple government employees at various levels of an agency.” ID
at 36-38, 44. The ALJ held that there was no indication that the respondent was
materially involved, or even significantly referenced, in the Schedule A
discussions among C.G. and the HRM staff. ID at 47. The ALJ noted that,
although the respondent signed the memorandum transferring M.B.’s Schedu le A
appointing authority to the HROPP, which coincided with M.B.’s refusal to
process Applicant A’s Schedule A application, it was the decision of C.G., the
respondent’s supervisor, to do so, and this was consistent with Chief Human
Capital Officer J.N.’s testimony that the respondent was “a bit timid and not real
assertive and not a big player in the operation.” ID at 47-48; Hearing Transcript
(HT), Volume (Vol.) 4 at 215. The ALJ further found that the Special Counsel
overstated the respondent’s involvement with processing Applicant A’s
Schedule A application when it suggested that she reviewed and edited various
drafts of the package because her role was limited to ministerial and
informational actions with staff, such as advising them not to include a ttachments
in emails to C.G. and asking them to review the package for format and grammar.
ID at 48. The ALJ found that there was no evidence suggesting that the
respondent engaged in any activity proscribed by statute or regulation, and that
C.G., not the respondent, signed Applicant A’s Schedule A application and
forwarded it to J.N. ID at 48-49.
¶16 Regarding each of the eight counts in the complaint, therefore, the ALJ
found that the Special Counsel failed to prove that the respondent acted
intentionally to commit some improper or unauthorized personnel action on the
basis of political affiliation or for the purpose of improving the prospects of the
12
applicants. ID at 49-70. The ALJ noted that the only evidence of the
respondent’s personal involvement with any of the packages was her having
signed the competitive package cover letters for her supervisor, C.G., and that
there was no probative evidence that she physically constructed or manipulated
the position descriptions, vacancy announcements, or applic ation packages, gave
orders to do so, or was personally involved in any aspect of planning, executing,
or creating those documents. ID at 49-50. The ALJ noted that, because the
Special Counsel did not offer into evidence the corporeal, complete, competit ive
application packages as they were presented to the respondent on the relevant
dates, the Special Counsel failed to support its assertion that the respondent
reviewed files that contained obvious evidence of favoritism. ID at 51‑52. The
ALJ also noted that no one testified that the respondent was aware of, let alone
motivated to act in the applicants’ favor based on, their political affiliation. ID
at 61, 64, 66. Thus, the ALJ concluded that the Special Counsel “errantly
conflates Respondent’s ministerial action of signing HRM staff work with an
improper intent,” and that her signatures on the documents simply did not prove
what the Special Counsel alleged. ID at 51.
¶17 The ALJ noted that, assuming that the respondent should have undertaken a
more detailed review of the competitive application packages before signing
them, the Special Counsel had proven, at most, that the respondent was negligent
in her duties, not that she acted intentionally to advance the applications for
improper reasons. ID at 61, 65-68. The ALJ concluded that the Special
Counsel’s case relied entirely on conjecture and speculation that the respondent
participated in, or “knew or should have known” of , the events in question, which
actually were directed and accomplished by persons other than the respondent
who were “apparently beyond the reach of [OSC] or the Board’s jurisdiction.” ID
at 68. Thus, the ALJ found himself “left with the unmistakable impression that
Respondent was charged solely because she was the last woman standin g,” and
that the evidence and testimony supported no other conclusion. Id.
13
ANALYSIS
¶18 On review, the Special Counsel asserts that the respondent granted
unlawful hiring preferences in violation of 5 U.S.C. § 2302(b)(6). 6 Petition for
Review (PFR) File, Tab 6 at 1. In this regard, the Special Counsel contends that
the respondent knew, when she certified that the three competitive appointments
complied with OPM rules, that “the competitive examinations were devised to
convert three political appointees to career status to satisfy the request of CBP’s
new Commissioner.” Id. The Special Counsel also contends that the respondent
subsequently “advanced [Applicant A’s] employment prospects” for a career
appointment under Schedule A of the excepted service, knowing that the
Schedule A hiring action was intended solely to hire the favored candidate. Id.
at 2.
¶19 Section 2302(b)(6) of title 5 states:
Any employee who has authority to take, direct others to take,
recommend, or approve any personnel action, shall not, with respect
to such authority . . . grant any preference or advantage not
authorized by law, rule, or regulation to any employee or applicant
for employment (including defining the scope or manner of
competition or the requirements for any position) for the purpose of
6
The Special Counsel indicates that it is incorporating its post -hearing brief by
reference and that its petition for review focuses only on counts 2, 4, 6, and 8 of the
complaint, which allege violations of 5 U.S.C. § 2302(b)(6). Petition for Review (PFR)
File, Tab 6 at 1 n.1. The Special Counsel does not otherwise challenge the initial
decision’s finding that it did not prove counts 1, 3, 5, and 7 of the complaint, which
allege that the respondent violated 5 U.S.C. § 2302(b)(1)(E) by discriminating for an
employee or applicant for employment on the basis of political affiliation.
The Board normally will consider only issues raised in a timely filed petition or cross
petition for review. 5 C.F.R. § 1201.115. Attempts to incorporate briefs that were filed
below are insufficient to meet the Board’s standards, and a petition for review must
identify any procedural or adjudicatory errors and explain how they affected the
outcome of the initial decision. Hulett v. Department of the Navy, 120 M.S.P.R. 54, ¶ 5
n.2 (2013). Under these circumstances, we find no basis for overturning the ALJ’s
findings regarding counts 1, 3, 5, and 7.
14
improving or injuring the prospects of any particular person
for employment . . . .
5 U.S.C. § 2302(b)(6).
¶20 To establish a violation of 5 U.S.C. § 2302(b)(6), the Board requires that
the Special Counsel establish an intentional or purposeful taking of a personnel
action in such a way as to give a preference to a particular individual for the
purposes of improving his prospects. Special Counsel v. Byrd, 59 M.S.P.R. 561,
570 (1993), aff’d, 39 F.3d 1196 (Fed. Cir. 1994) (Table). This standard is
consistent with the plain text of the statute, which specifies that the preference
must be given “for the purpose of” providing the improper advantage. 5 U.S.C.
§ 2302(b)(6). Thus, whether the respondent violated 5 U.S.C. § 2302(b)(6) turns
on whether she intended to afford preferential treatment to the three applicants in
question. See Byrd, 59 M.S.P.R. at 590. It is not the respondent’s actions
themselves that violate the law, but instead, the intent behind those actions. Id.
The Special Counsel bears the burden of proving that the respondent has violated
section 2302(b)(6) by preponderant evidence. See Special Counsel v. Cummings,
20 M.S.P.R. 625, 632 (1984); 5 C.F.R. § 1201.56(a)(1)(ii).
¶21 At the outset, we state up front that, while the respondent’s actions
amounted to possible error or negligence, we find that they did not rise to the
level of intentionally committing an unlawful hiring practice. Likew ise, our
decision in this matter does not resolve whether illegal hiring practices did or
did not happen. They may have, but the Special Counsel failed to prove that the
respondent’s actions showed that she intentionally granted an unlawful hiring
preference in violation of 5 U.S.C. § 2302(b)(6). 7 We now explore the specific
reasons in support of these findings.
7
According to the ALJ, a former co-respondent in this case, who was charged with
committing prohibited personnel practices, ultimately entered into a settlement
agreement with OSC. ID at 33. This individual, at the Board hearing, testified that she
never had any communication, directly or indirectly, with th e respondent, or that the
15
The respondent’s statements in her pre-appeal interviews with the Special
Counsel do not establish that she intentionally committed an unlawful
hiring practice.
¶22 The Special Counsel asserts that the respondent knew when she certified
the competitive appointments that the Office of Human Resources Management
“had used these appointments specifically to hire [the Commissioner’s] political
team.” PFR File, Tab 6 at 7. To support this assertion, the Special Counsel cites
to testimony the respondent provided under oath during two pre ‑appeal
interviews with the Special Counsel. Id. at 8-9. The Special Counsel contends
that, because the respondent testified at the hearing that she did not know of the
“improper purpose” of the hiring actions, a conflict in the evidence existed that
the ALJ failed to resolve. Id. at 15. The Special Counsel also asserts that the
ALJ improperly discounted these alleged prior conflicting statements upon
finding that the respondent’s statements during the pre-appeal interviews were
made without the benefit of discovery and counsel. Id. at 16.
¶23 More specifically, the Special Counsel asserts that the respondent knew in
April 2010 of the CBP’s plan to hire political appointees into career positions
because she admitted during the pre-appeal interviews about knowing of her
office’s attempt to hire the Commissioner’s favored candidates. Id. at 8. The
record citations the Special Counsel identifies do not, however, support a finding
that the respondent intended to afford preferential treatment to the candidates in
question. During the interviews, the respondent testified that she first learned
Applicant A’s name in April 2010 “when the organization was trying to hire
him,” C.G. was working with the “front office” on hiring him, she tracked the
hiring process on the rare occasions when C.G. was out of the off ice, and she
“otherwise . . . had little . . . involvement.” IAF, Tab 86, Ex. 133 at 23-24. The
respondent “was involved in any way in the handling of the three competitive
applications at issue.” ID at 33‑34.
16
respondent did not testify that she knew that others had granted an unauthorized
preference or that she was doing so when she signed the certifications. In f act,
contrary to the Special Counsel’s contention that the respondent knew that the
Commissioner favored the candidates, the respondent testified that she knew that
the selecting official was interested in hiring Applicant A, but was not aware of
anyone else who wanted to hire him, including the Commissioner. Id. at 25-27.
¶24 The Special Counsel also contends that the respondent admitted during the
pre-appeal interviews that C.G. mentioned hiring the three applicants through
vacancy announcements, and that the respondent knew “in the April time frame”
that C.G. was working with the “front office” on hiring Applicant A. PFR File,
Tab 6 at 17. The respondent actually testified, however, that she “probably” first
learned Applicant A’s name “in the April time frame” in the context of keeping
track during C.G.’s absence of what was going on regarding hiring Applicant A.
IAF, Tab 86, Ex. 133 at 23-24. In any event, much of the purported conflicting
testimony the Special Counsel identifies on review relates to w hen the respondent
learned the names of the three applicants at issue here. We find that any
discrepancies in either the dates of such knowledge or who was interested in
hiring any of the three candidates does not show that the respondent was aware of
any unauthorized preference or advantage that had been provided in the
application process or that she herself intended to give an unauthorized
preference or advantage when she certified that the personnel actions complied
with OPM’s requirements.
¶25 The Special Counsel also identifies the respondent’s testimony during her
pre-appeal interviews indicating that she heard Applicant A’s name in April 2010
in connection with the names of Applicants B and C regarding “merit promotion
announcements and could we reach them through vacancy announcements” or a
competitive process. PFR File, Tab 6 at 34-35. This testimony could be
construed to conflict with the respondent’s hearing testimony that, when she first
received Applicant B’s competitive application package, she “had no idea what
17
the . . . request was about, why it was coming in for signature,” was not familiar
with the package, and had the former Staffing and Policy Director explain to her
that Applicant B was a political appointee who had applied for the positio n
through a vacancy announcement handled by the IHC. HT, Vol. 4 at 60, 66.
However, the respondent’s hearing testimony must be placed in the context of her
having received Applicants B’s and C’s packages in such a state of “disarray”
that she returned them to be placed in the proper order with a table of contents.
Id. at 60, 65. Moreover, this reference in the pre‑appeal interviews to her
recognizing certain names in connection with hiring through a competitive
process does not establish that the respondent knew when she signed the
certifications that she was granting an unauthorized preference, i.e., that there
was an “improper purpose” to her actions. In fact, the respondent’s testimony
during the pre-appeal interview reflects that, when she signed th e certifications
for Applicants B and C, she was not aware that there were selective placement
factors associated with the positions in question. Id. at 118‑20. She also
testified that, when reviewing Applicant A’s competitive application package,
she did not remember seeing that the IHC had changed Applicant A’s response to
a question regarding whether he met the minimum qualifications for the position.
Id. at 179-80; HT, Vol. 4 at 90-91. The respondent further testified that she
did not know, when she certified the competitive packages, that the HROPP had
received the applicants’ résumés before it drafted the vacancy announcements.
HT, Vol. 4 at 115. Thus, even fully considering the pre-appeal interview
testimony that the ALJ found was outweighed by the respondent’s hearing
testimony, ID at 59-60, it does not warrant a different outcome in this case.
The respondent’s questions about possibly using an excepted ‑service
appointment under Schedule A do not establish that she later intentionally
committed an unlawful hiring practice.
¶26 The Special Counsel contends that the respondent testified during her
pre-appeal interviews that C.G. asked her to check with M.B., CBP’s Director of
18
Executive Services, to determine if the CBP could use an excepted ‑service
appointment under Schedule A to hire Applicant A and whether the new OPM
rules on political conversions applied to Schedule A. PFR File, Tab 6 at 9. The
Special Counsel also asserts that the respondent admitted that she contacted M.B.
to “find out what is the authority, how do we use it, how many people have been
currently appointed under that authority, that kind of thing.” Id.; IAF, Tab 86,
Ex. 133 at 37. The respondent’s attempt to learn more about the Schedule A
authority does not, however, establish that she later acted with an intent to grant
an unauthorized preference as to that authority. In fact, the respondent testified
that the CBP’s Schedule A hiring authority was unique and “new to me,” and
M.B. was very helpful in providing the respondent with information regarding the
process and the number of Schedule A openings. IAF, Tab 86, Ex. 133 at 37-38.
¶27 The respondent testified that M.B. ultimately told her that she did not think
that OPM would approve using the Schedule A hiring authority because the CBP
previously had tried to hire Applicant A under a merit promotion announcement,
and she may have told the respondent that it created the appearance of a
prohibited personnel practice. Id. at 38-40. The Special Counsel notes that M.B.
testified at the Board hearing that she informed the respondent that she would no
longer be a part of the Schedule A hiring action for Applicant A because of the
political “burrowing in” issue, which M.B. believed could lead to an
investigation. PFR File, Tab 6 at 10; HT, Vol. 2 at 26-28.
¶28 We agree with the ALJ that M.B.’s objections as expressed to the
respondent related to the CBP’s using the Schedule A hiring authority for
Applicant A, not to the competitive‑hiring process. ID at 37; IAF, Tab 83, Ex. 9;
HT, Vol. 1 at 214. Thus, the referenced discussions the respondent had with
M.B. fail to show that the respondent intentionally granted an unauthorized
preference when she certified Applicant A’s competitive application.
19
¶29 M.B. expressed her concerns to the respondent regarding the Schedule A
hiring process for Applicant A. Yet, other individuals within the CBP and DHS,
including Chief Human Capital Officer J.N., disagreed with OPM’s ultimate
decision to deny DHS’s request to convert Applicant A, based on OPM’s finding
that the agency did not follow its own operating procedures when making such an
appointment, and that Applicant A was not “uniquely” qualified for the position,
but was at best minimally qualified. IAF, Tab 84, Ex. 115; HT, Vol. 4 at 200-01.
J.N. testified that he believed using the Schedule A hiring process was
appropriate for the conversion because Applicant A did not need to be “uniquely”
qualified for the position, but only qualified, the wording of the CBP’s
procedures indicated that public notice was not required, soliciting résumés
“may” be used but was not required as OPM found, and the procedures
themselves could be waived with prior approval by C.G., the Assistant
Commissioner of HRM. HT, Vol. 4 at 200‑05. Even M.B. disagreed with OPM’s
determination that the agency did not follow its own operating procedures when
seeking Applicant A’s appointment using the Schedule A authority, testifying that
the agency never used any written policy when filling Schedule A positions,
5 C.F.R. part 302 did not apply to the CBP’s hiring for those positions, and there
were no such requirements for filling the 10 Schedule A positions.
¶30 We thus agree with the ALJ that, given this difference of professional
opinion between OPM and DHS as to the propriety of using the Schedule A
authority to hire Applicant A, the Special Counsel has not shown under the
circumstances of this case that the concern, by itself, that M.B. expresse d to the
respondent establishes by preponderant evidence that the respondent subsequently
acted with an intent to provide an unauthorized preference to Applicant A as to
any of her actions in this case. ID at 57. In any event, the ALJ found that the
respondent’s actions to hire Applicant A were merely ministerial and
informational, ID at 48, and, as set forth more fully below, the Special Counsel
has not shown that the ALJ erred in that regard.
20
Even assuming that the respondent was kept “in the loop” ab out matters
pertaining to the three applicants, this does not prove that she intentionally
committed an unlawful hiring practice.
¶31 The Special Counsel contends that C.G. testified at the Board hearing that
she kept the respondent “in the loop” on the hiri ng actions for the three
applicants. PFR File, Tab 6 at 11. In fact, some of the testimony indicates that
C.G. sent the respondent a courtesy copy of a May 18, 2010 email she had sent to
the then-acting Director of Hiring, about creating a process or che cklist to ensure
that CBP sent the correct documents to DHS whenever a political appointee was
selected for a competitive‑service position because “I tried to keep her in the
loop on everything I could.” HT, Vol. 5 at 238-40; IAF, Tab 83, Ex. 49.
Likewise, C.G. testified that, when M.B. was working on Applicant A’s
Schedule A appointment authority and Applicant B’s and C’s competitive
packages were being handled, the respondent was “in the loop.” HT, Vol. 5
at 247. The Special Counsel further notes that C.G. testified about informing the
respondent of the Commissioner’s interest in the three applicants. PFR File,
Tab 6 at 11; HT, Vol. 5 at 274‑76.
¶32 Even assuming the truth of this testimony, however, we find that it merely
shows that C.G. tried to keep the respondent generally aware that others were
working on packages involving individuals of interest to the Commissioner . It
does not show that the respondent was told any details about the processing of
those packages, such as whether others had provided those employees with
unauthorized preferences. In fact, even assuming that the respondent knew from
C.G. or somebody else that the three applicants at issue were political appointees
at DHS, such knowledge alone would not demonstrate that she or the agency were
trying to provide them with an unlawful preference or advantage. In this regard,
we note that OPM’s “Berry Memo” states that, while political appointees
must not be given preference or special advantages, they may not be excluded
from consideration for Federal jobs because of their political affiliation. IAF,
21
Tab 83, Ex. 12. Thus, we find that the evidence provided that the respondent was
kept “in the loop” does not prove by preponderant evidence that she herself acted
with the intent to grant an unauthorized preference or advantage.
The respondent’s role in the HR office, her receipt of certain emails, and her
behavior after the DHS rejected the hiring actions do not demonstrate that she
intentionally committed an unlawful hiring practice.
¶33 The Special Counsel asserts that emails the respondent received, her role as
the Deputy Assistant Commissioner, and her behavior after DHS rejected the
competitive selections all show that she knew of the improper purpose of the
hiring actions. PFR File, Tab 6 at 13-15. The emails in question, however,
merely indicate an update on the hiring actions, that the Commissioner was
interested in a given candidate, and that the respondent “thought” that
Applicant A’s competitive application package was a priority. They do not
reveal any information to establish, for example, that selective placement factors
had been added to match the applicants’ experience or that the IHC staff
processing the applications had deemed Applicant A as qualified despite his
contrary responses to the qualifying questions. See, e.g., IAF, Tab 83, Exs. 40,
49, Tab 84, Ex. 81. Thus, the respondent’s receipt of these emails does not
provide a basis for finding that she intended to afford preferential treatment.
¶34 Next, the Special Counsel contends that the evidence shows that the
respondent was a Senior Executive Service (SES) official and C.G.’s full deputy
and “alter ego.” PFR File, Tab 6 at 14. Nonetheless, these facts again do not
demonstrate an intent to provide preferential treatment. The Special Counsel
contends further that the respondent’s improper purpose for the appointments is
evidenced by her admission that, after DHS rejected the CBP’s selection of the
three applicants at issue, she did not consider filling the jobs with other
applicants on the certification list. Id. at 15; IAF, Tab 86, Ex. 133 at 126-27.
However, there is no dispute that the respondent was not the selecting official for
any of these candidates. HT, Vol. 3 at 56; IAF, Tab 83, Ex. 28, Tab 84, Exs. 58,
22
74. Thus, the Special Counsel has not established that the respondent was in a
position to select or not select any or all of the applicants.
¶35 In fact, we find that the respondent’s reaction during the meeting with
Chief Human Capital Officer J.N. and HRM Assistant Commissioner C.G., when
J.N. informed them of his strong disapproval of the competitive appointments,
shows that she did not know of the improper purpose when she signed the
certifications. The respondent testified during her pre-appeal interviews
that J.N.:
specifically stated he didn’t think either candidate was highly
qualified or even barely, minimally qualified for the jobs . . . . He
mentioned the selective placement factors . . . that [were] included in
both of the announcements. Then he mentioned at that time that both
of these individuals were on Schedule C appointments. They were
working at the department for [the Commissioner]. I can tell you at
that time, at that meeting, my head was on fire, I physically and
mentally felt like I was melting in the chair. Because prior to that
meeting, I did not realize that [Applicant B] and [Applicant C] had
worked for [the Commissioner] when [he] was at the department.
And I didn’t really—I was so embarrassed sitting there at the table
because I did not look at those quality rank—excuse me, selective
placement factors in those announcements. And when he was —when
[J.N.] was talking about their qualifications, I was professionally
embarrassed sitting at that table because I did not go through those
packages with due diligence, I didn’t . . . I really didn’t pay any
attention when I signed those packages in April, where they
were employed.
IAF, Tab 86, Ex. 133 at 121-22.
¶36 The respondent further testified:
But I just know that when I was at that table, I physically felt hot and
embarrassed, and I just was—so, he asked who approved those
packages, and I told him I had. And he asked me if I felt any
pressure from any individual . . . . I told him “no.” I told him that I
did not do due diligence looking at those packages. And to find out,
sitting there at the table that he had gone through those packages so
thoroughly that, looking at what he did is what I should have done,
and that’s what I told him. He was doing the job that I should have
[done] on those packages. It never should have made it up there.
23
Id. at 122. The respondent added:
I was so embarrassed that these packages were sitting there with my
signature on them. One, I should not have signed them without my
boss looking at them. And second, because he went through them in
such detail and I had signed it, I professionally was e mbarrassed.
And . . . that I kept thinking about that the whole [time], I was so
distracted with that, I felt six inches tall. You know, I’m new SES,
been there since September, here it is, and now it’s June and I signed
them in April.
Id. at 128. She testified that, if she had done “due diligence” on the packages,
then she would have come to the same conclusion as J.N. Id. at 138-39. 8 The
respondent’s testimony regarding her reaction at the meeting with J.N. and C.G.
is consistent with J.N.’s testimony that, after he told C.G. and the respondent of
his displeasure with the way the packages had been created and manipulated, the
respondent appeared “mortified” and upset, while C.G. did not appear fazed in the
least. HT, Vol. 4 at 175-76.
The alleged conflicting testimonial and documentary evidence regarding the
respondent’s knowledge fails to show that she intentionally committed an
unlawful hiring practice.
¶37 The Special Counsel contends that the ALJ did not resolve a “clear
conflict” between the respondent’s hearing testimony denying knowledge of the
purpose of the hiring actions and evidence to the contrary. PFR File, Tab 6 at 15.
Specifically, the Special Counsel argues that the respondent’s hearing testimony
that the names of the three applicants meant nothing to her, she was not aware on
May 18, 2010, of the Commissioner’s interest in Applicant A’s appointment, she
did not know who Applicant A was when she signed off on the package for his
8
The respondent testified in a similar manner during the Special Counsel interviews
regarding Applicant A’s competitive application package, stating that she reviewed the
package as she did the other two, “not looking again at the qualifications, at the
vacancy announcement, and just looking, just basically going through it in a light read,”
and that she did a cursory review and did not notice that Applicant A had rated himself
as ineligible, which was overridden by the IHC. IAF, Tab 86, Ex. 133 at 177‑78, 180.
24
competitive appointment, she was unaware that Applicants B and C had been
recruited when she reviewed their hiring packages, and she was not aware of the
Commissioner’s interest in hiring Applicant B, conflicted with evidence that she
had seen those names in emails days before she certified Applicants B’s and C’s
appointments. Id. at 16‑17. The Special Counsel asserts that this testimony
conflicts with the CBP’s Director of Executive Services M.B.’s testimony that
“we” were aware that Applicant A worked for the Commissioner, that “we all
knew” in discussing the Schedule A recruiting authority that the Commissioner
was interested in hiring Applicant A, and that she told the respondent before
Applicant A’s competitive appointment that she would no longer work on his
Schedule A package because of concerns about political “burrowing in.” Id.; HT,
Vol. 2 at 27-28.
¶38 However, M.B.’s testimony that “we” knew that Applicant A had worked
for the Commissioner was in response to a question regarding C.G.’s (rather than
the respondent’s) involvement, and thus does not suggest that the respondent also
knew that information. HT, Vol. 1 at 224-25. M.B.’s testimony that “we all
knew” of the Commissioner’s interest in hiring Applicant A appears to be based
solely on M.B.’s belief that C.G. and the respondent “were involved in this,”
without identifying any other basis for her belief, such as directly observing the
respondent receiving information that the Commissioner wanted to hire
Applicant A. See Spurlock v. Department of Justice, 894 F.2d 1328, 1330 (Fed.
Cir. 1990) (finding that imprecision detracts from the weight to be accorded
evidence). This testimony does not, therefore, overcome the respondent’s
specific denial in this regard. In addition, M.B. testified that she briefed the
respondent on her discussions with a DHS official regarding using t he
Schedule A law enforcement authority to hire Applicant A “during this
April-May 2010 timeframe.” HT, Vol. 2 at 23-24. Notably, though, M.B.
did not indicate that such a briefing occurred before the respondent certified
25
Applicant A’s competitive package on May 19, 2010. IAF, Tab 90, Ex. LL.
Because M.B.’s testimony only addresses Applicant A, it does not contradict the
respondent’s testimony regarding the other two applicants at issue.
¶39 The Special Counsel also relies upon two emails the respondent rec eived
and sent on May 18 and May 19, 2010, respectively, that it claims show that
Applicant A’s appointment was a “high interest item” for the Commissioner.
PFR File, Tab 6 at 17. In the May 18 email, a courtesy copy of which was sent to
the respondent, C.G. asked the acting Director of Hiring to check on the status of
Applicant A’s package, and stated that the Commissioner was “particularly
interested in this one.” IAF, Tab 83, Ex. 49. In the May 19 email, the respondent
informed C.G. that she missed a DHS meeting to work on Applicant A’s package
because she “thought it best to keep some of these high interest items moving.”
IAF, Tab 84, Ex. 81. The Special Counsel further references an April 19, 2010
email the respondent received as a courtesy copy t hat provided an update on the
status of hiring the three applicants at issue. PFR File, Tab 6 at 17‑18; IAF,
Tab 83, Ex. 40.
¶40 The respondent testified at the hearing that she “just glanced through” the
May 18, 2010 email on her Blackberry while she was on leave for the afternoon,
and did not give it much significance or pay much attention to it then because she
was packing for a long trip, getting her car fixed, and visiting a health care
provider. HT, Vol. 5 at 73-75. She testified that she did not know who
Applicant A was at that time, and there was nothing in the May 18, 2010 email
indicating that he was a Schedule C political appointee. Id. at 76. Regarding the
other emails identified by the Special Counsel, we again find that the level of the
respondent’s familiarity with Applicant A’s name and knowledge of who was
interested in hiring him, and whether any of these hires were of a “high int erest”
to the Commissioner, do not show that the respondent acted with the intent to
grant an unauthorized preference or advantage when she signed the certification
letters on behalf of C.G. in C.G.’s absence.
26
¶41 The Special Counsel further relies upon C.G.’s testimony that she “would
have” conveyed the Commissioner’s interest in the three applicants to the
respondent and the rest of the staff, that the respondent knew, when she certified
the three competitive application packages, that the political appointees were of
interest to the Commissioner, and that the respondent was “in the loop” on the
political conversion packages. PFR File, Tab 6 at 17-18. As set forth above, see
supra ¶ 32, this testimony regarding what C.G. “would have” done or believed
the respondent knew, regarding whether the applicants were “of interest” to the
Commissioner, does not show by preponderant evidence that the respondent
intended to grant an unauthorized hiring preference or advantage. Consequently,
we find that the Special Counsel has not shown that any discrepancies or conflicts
in the documentary evidence or the respondent’s testimony affect our ultimate
determination that the Special Counsel has not proven its charges.
Although the respondent may have been negligent and/or motivated to please her
new manager, that is insufficient to establish that she reviewed files that
contained obvious evidence of favoritism or that she intentionally committed an
unlawful hiring practice.
¶42 The Special Counsel contends that “[e]vident manipulation of the hiring
process contained in the hiring packages Respondent certified further
demonstrates her culpability.” PFR File, Tab 6 at 18. In particular, the Special
Counsel contends that the packages the respondent reviewed included obvious
evidence of noncompliance with OPM directives and improper IHC actions, such
as tailoring position requirements to the favored candidates’ experiences and the
qualification of two favored candidates who lacked minimum qualifying
experience. Id. at 18-19. The Special Counsel asserts that the respondent’s
disregard for the evidence of manipulation provided the candidates with
unauthorized advantages, and that the ALJ erred in crediting the respondent’s
claim that she conducted only a cursory review of the pack ages she certified. Id.
at 20-21. In this regard, the Special Counsel notes that the respondent had over
20 years of experience in HR, understood her duty and accountability as a
27
certifying official, had an opportunity to discover the hiring process
manipulation, provided no reasonable explanation for her conduct or
corroboration for her testimony, and had a motive to please the new
Commissioner. Id. at 21-24.
¶43 Although the respondent testified that by September 2011, she had 24 years
of HR experience, she also testified that this was the first time she had worked on
converting a Schedule C employee to a career appointment, given that she had not
dealt with political appointees in her prior employment. IAF, Tab 86, Ex. 133
at 17-18, 158. In fact, this was the first time the CBP and DHS had processed
political conversion actions since the issuance of the Berry Memo in
November 2009. HT, Vol. 4 at 61-62. As the ALJ noted, the respondent had
joined the CBP only 7 or 8 months before the certifications at issue, ID at 28; HT,
Vol. 4 at 37-38, and the Deputy Assistant Commissioner position was her first
SES position, IAF, Tab 86, Ex. 133 at 15-16, 158. Moreover, the fact that the
respondent testified that she understood the general principles behind the Berry
Memo, HT, Vol. 4 at 52‑57, does not necessarily contradict her testimony that
she did not perform due diligence as to her review of the packages in question.
¶44 Moreover, there is corroboration for the respondent’s testimony that she
conducted cursory reviews and failed to note the manipulation of the application
packages. C.G. testified that the respondent took responsibility for the
competitive application packages during the meeting she had with J.N. when he
disapproved them, and afterward told C.G. that she mistakenly failed to go over
the packages in more detail before sending them to DHS. HT, Vol. 5 at 270-71.
C.G. also testified that she did not recall if, before she left for her vacation, she
gave the respondent any specific instructions regarding w hat to do with the
packages when they were transferred from the IHC to headquarters. Id.
at 216-20. The Special Counsel has provided no evidentiary support that the
respondent was motivated to please the Commissioner when she signed the
28
certifications for the applicants in question. PFR File, Tab 6 at 24. In any event,
even if the respondent were anxious to please the new Commissioner, it does not
necessarily follow that she acted illegally here. Likewise, it appears that the
respondent may have been negligent in the performance of her duties. But
negligence alone is insufficient to establish that she intentionally committed an
unlawful hiring practice. In addition, the Special Counsel has shown no error in
the ALJ’s determination that the record does not include a complete copy of the
packages as they existed when the respondent certified them and forwarded them
to DHS. ID at 31, 51, 61, 64, 66. Thus, the ALJ properly concluded that the
Special Counsel failed to prove by preponderant evidence that the respondent
reviewed files that contained obvious evidence of favoritism. ID at 51-52.
The respondent’s actions concerning the processing of one of the applicant’s
appointment under Schedule A authority fails to demonstrate that she
intentionally committed an unlawful hiring practice.
¶45 The Special Counsel also contends that the respondent knew that the
Schedule A position was intended for only one favored candidate and granted an
unlawful hiring preference when she helped Applicant A obtain that position.
PFR File, Tab 6 at 25. In this regard, the Special Counsel disagrees with the
ALJ’s determination that the respondent’s role in the Schedule A appointment
process was only informational, ministerial, and “almost non -existent,” asserting
that her role was substantive and necessary and included transferring Schedule A
appointment authority away from the CBP’s Director of Executive Services M.B.,
who opposed using that authority because she believed it constituted an improper
attempt to “burrow[] in” a political appointee. Id. at 10, 25-27.
¶46 As the ALJ found, however, it was C.G. who decided to remove M.B.’s
Schedule A authority, and who directed the respondent to draft the letter effecting
the change. ID at 47-48; IAF, Tab 86, Ex. 133 at 44, 87, Tab 93, Ex. DDDD.
Thus, we agree with the ALJ’s characterization of the respondent’s actions in this
29
regard, and find that they do not show that she acted with an intent to provide an
unauthorized preference or advantage.
¶47 The Special Counsel also contends that the respondent thereafter prepared,
with her staff’s help, the cover letter asking for Applicant A’s appointment under
Schedule A, as well as the memorandum containing the agency’s justification for
the appointment, making several revisions to the memorandum to bolster the
applicant’s candidacy. PFR File, Tab 6 at 27. The Special Counsel asserts that
the respondent discussed presentation strategies with C.G., including inserting
into the cover letter a reference to their meeting with J.N. as a way of showing
that DHS already had approved the use of Schedule A for the appointment. Id.
at 27‑28. The Special Counsel further claims that the respondent supervised the
responses to OPM’s questions regarding the appointment, instructing the staff on
content and revising their work. Id. at 28-29. Those responses, according to the
Special Counsel, did not notify OPM about the earlier unsuccessful attempt to
hire Applicant A through a competitive appointment, as well as the decision not
to seek other potential applicants because the CBP had determined that the
position was intended only for Applicant A. Id. at 29.
¶48 We agree, however, with the ALJ’s determination that the Special Counsel
overstated the respondent’s involvement in processing Applicant A’s Schedule A
application and that the respondent’s role was limited to insubstantial actions not
proscribed by statute or regulations set forth in the Special Counsel’s complaint.
ID at 48, 52, 57. 9 The record reflects, for example, for the staff who assembled
9
The Special Counsel contends that a “ministerial” act leaves no room for choice or
discretion, and that the respondent’s certifications of the competitive applications
did not meet this definition, presumably because she could choose whether or not she
would sign them. PFR File, Tab 6 at 30 n.26. Regardless of how the term “ministerial”
is interpreted, however, we agree with the ALJ’s ultimate determination that the Special
Counsel did not prove that the respondent acted with the requisite intent under the
circumstances of this case.
30
Applicant A’s Schedule A package, the respondent gave them a “coaching tip”
that they should provide C.G. a hard copy of the attachments that they included in
their email that transferred that package to her. IAF, Tab 84, Ex. 94 at 13. In
addition, she edited the Schedule A cover letter to show that it was being sent
from DHS to OPM, rather than from C.G. to the Commissioner. Compare IAF,
Tab 84, Ex. 94 at 2, with id. at 15; HT, Vol. 5 at 91-92. The respondent also
asked her assistants to print the document on letterhead for C.G., and that the
staff review the memorandum for “format, grammar, etc.” IAF, Tab 84, Ex. 94
at 25, 28; HT, Vol. 5 at 92-93, 95‑96. Similarly, the respondent testified that she
instructed her staff to change the introductory paragraph of Applicant A’s
Schedule A letter in accordance with C.G.’s desire to indicate that using such
authority for Applicant A already had been discussed with J.N., HT, Vol. 5
at 103-04, and to change a response to OPM’s question regarding the conversion
by clarifying that the CBP’s HRM had consulted with DHS on using Schedule A
for Applicant A, and removing a reference to the selecting official and functional
managers having consulted with DHS to be more accurate and truthful, id.
at 132-34.
¶49 The Special Counsel contends that the CBP’s response to OPM, which the
respondent edited, did not notify OPM about the earlier unsuccessful attempt to
hire Applicant A through a competitive appointment and the decision not to seek
other potential applicants because the position was intended only for Applicant A.
OPM’s questions, though, focused on why the CBP used the Schedule A authority
without following its operating procedures regarding contacting other recruitment
sources. E.g., IAF, Tab 84, Ex. 113 at 1-8, 11-13. The draft response candidly
indicated to OPM that the CBP interpreted its operating procedures so as to
permit C.G., the Assistant Commissioner of the CBP’s HRM, to exempt the CBP
from following its operating procedures and used “informal networking
opportunities to identify a superior candidate that would meet the mission
31
specific requirements of this position.” Id. at 3. Therefore, we draw no adverse
inference from the respondent or anyone else who reviewed and submitted the
document to OPM in failing to include other information that OPM had not
requested. In fact, the respondent notified her staff that its earlier draft response
was not sufficient and a more comprehensive explanation and response to the
questions was required because OPM was “asking us the same question—we can’t
give them a shorter more cryptic response.” Id. at 10. We find that the Special
Counsel has failed to prove by preponderant evidence that the respondent
engaged in any of these acts related to the Schedule A authority with the intent to
afford preferential treatment.
We defer to the administrative law judge’s finding that J.N. was a credible
witness, in support of his conclusion that the Special Counsel failed to prove that
the respondent intentionally committed an unlawful hiring practice.
¶50 The Special Counsel asserts that the ALJ erred when he relied upon Chief
Human Capital Officer J.N.’s “speculative” testimony. PFR File, Tab 6 at 30.
The Special Counsel also contends that the ALJ erroneously required it to prove
that the respondent was the “mastermind” behind the prohibited activity because
5 U.S.C. § 2302(b)(6) and Board precedent provide that any official with
personnel authority who grants an unauthorized preference should be held liable.
PFR File, Tab 6 at 30. The Special Counsel asserts that, although the ALJ
implied that HRM Assistant Commissioner C.G. “set up” the respondent for
blame by being absent on the days the appointments had to be certified (and
thereby having the respondent, rather than C.G., certify and sign the packages),
the respondent admitted that she acted voluntarily and on her own. Id. at 31.
Further, the Special Counsel contends that the ALJ improperly relied on J.N.’s
opinions about the respondent’s role, rather than the facts, and that J.N. admitted
on cross examination that his opinions as to the respondent’s role were based on
speculation and “things” he heard “from people,” not on what he observed. Id.
The Special Counsel asserts that, although the ALJ found that J.N. was credible
32
because he had no particular personal or professional stake in the outcome of the
personnel actions at issue, J.N. knew that the Schedule A action was being driven
by the Commissioner’s desire to hire Applicant A and J.N. retired before the
Special Counsel’s investigative interviews began. Id. at 32.
¶51 We agree with the Special Counsel that an individual need not be a
“mastermind” of the prohibited activity to violate 5 U.S.C. § 2302(b)(6).
Nevertheless, as set forth above, the ALJ correctly required the Speci al Counsel
to prove that the respondent intended to grant an authorized preference when she
certified the competitive application packages of the three applicants at issue and
engaged in other acts related to Applicant A’s Schedule A application. ID
at 24-25; see, e.g., Byrd, 59 M.S.P.R. at 590. The ALJ did not require the Special
Counsel to prove that the respondent was the “mastermind” of the prohibited
activity, but merely included in his analysis testimony from J.N. that he did not
see a lot of evidence that the respondent was the “mastermind of this thing.” ID
at 46. Despite the Special Counsel’s contention that the respondent admitted
during testimony that she acted voluntarily and on her own in certifying the
competitive applications, this testimony merely reflects the respondent’s belief
that no one pressured her or told her to sign the certifications, she was
accountable and responsible for certifying the packages, and she should have
reviewed them more carefully than she did. IAF, Tab 86, Ex. 133 at 86, 122, 132;
HT, Vol. 7 at 56. Such testimony does not demonstrate that the respondent
intended to grant an unauthorized preference or advantage, and is consistent with
the ALJ’s findings regarding C.G.’s apparently suspicious role in the matter.
¶52 Further, the ALJ assigned particular credibility to J.N.’s testimony
concerning C.G., noting J.N.’s demeanor during his testimony, his position as the
senior HR officer at DHS, and his “unique personal and professional perspective
from which he could judge the actions and motivations of the actors, specifically
including [C.G.].” ID at 53. Despite the Special Counsel’s claim that J.N.
admitted on cross examination that his opinions as to the respondent’s role were
33
based on speculation and rumors, J.N. also testified that his opinions regarding
C.G. were based on his work with her on the Human Capital Council, which
usually met once per month to address human capital issues. HT, Vol. 4 at 278.
He further testified that his opinion as to C.G.’s and the re spondent’s respective
roles in the matters at issue was based as well on information he received from
his staff, who would give him their impressions “of the various components and
who actually would work with the Department on things, who tried to be as
independent as possible, who really they viewed as trustworthy, who they didn’t.”
Id. at 279-80. J.N. testified that he formed his own opinions based on that
information and his personal exposure to the individuals in question. Id. at 280.
As set forth above, J.N. also directly observed C.G. and the respondent during his
meeting with them at which he rejected the CBP’s request to appoint the three
applicants at issue pursuant to the competitive application process. Accordingly,
we find no basis to discount the ALJ’s findings in this regard.
¶53 Likewise, the ALJ’s finding that J.N. was credible because he had no
particular personal or professional stake in the outcome of the personnel actions
at issue was only one of the bases upon which he found J.N.’s test imony to be
credible. ID at 53. In any event, J.N.’s knowledge that the Commissioner wanted
to hire Applicant A, and the timing of J.N.’s retirement, HT, Vol. 4 at 156-57,
267, do not show that J.N. had a stake in the outcome of this matter or that the
ALJ should have found J.N. not credible.
¶54 The Special Counsel’s arguments in this case are primarily based upon
circumstantial evidence. Proper circumstantial evidence can be relied upon to
establish intent. Acting Special Counsel v. Sullivan, 6 M.S.P.R. 526, 546 (1981).
The Board may infer intent when the strength of the evidence warrants such an
inference. Id. However, conclusions as to subjective intent may not be based on
mere surmise or speculation as to what plausibly could have occurred, and an
unlawful intent “is not lightly to be inferred.” Id.
34
¶55 We find that the circumstantial and any other evidence relied upon by the
Special Counsel is not sufficiently strong to warrant an inference that the
respondent intended to grant a preference or advantage not authorized by law,
rule, or regulation when she took any of the actions at issue in this case. Most of
the evidence identified by the Special Counsel addresses whether and when the
respondent knew, in general terms, that certain individuals within the CBP were
interested in hiring the three applicants at issue. By contrast, as the ALJ found,
ID at 29-31, 34-35, 43-44, there is little, if any, evidence in the re cord to show
the respondent was aware of any improper actions taken by the IHC in preparing
the application packages that she ultimately certified, or knowledge on her part
that using the Schedule A authority to hire Applicant A was inappropriate.
¶56 While the Board is free to substitute its judgment for that of an ALJ, the
Board is not free to overturn an ALJ’s credibility findings merely because it
disagrees with those findings. See Haebe v. Department of Justice, 288 F.3d
1288, 1299 (Fed. Cir. 2002). The Board must defer to an ALJ’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing. Id. at 1301. The Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Id. Because the ALJ heard live testimony in this case, his credibility
determinations must be deemed to be at least implicitly based upon the demeanor
of the witnesses. See Aldridge v. Department of Agriculture, 111 M.S.P.R. 670,
¶ 11 (2009). In addition, he explicitly relied upon J.N.’s demeanor. ID at 53.
Further, the ALJ specifically stated that he had thoroughly and carefully analyzed
the documentary evidence, the testimony and credibility of witnesses, and the
administrative record as a whole and found the respondent “highly credible.” ID
at 6, 41. We find that the Special Counsel’s arguments on review do not
constitute sufficiently sound reasons to overturn the ALJ’s credibility
determinations. In fact, when we consider the totalit y of the evidence, we find
that the facts in this case are more consistent with the respondent having acted
35
with an innocent intent than they are with her not having done so. See Beatrez v.
Merit Systems Protection Board, 413 F. App’x 298, 304, 306 (Fed. Cir. 2011). 10
¶57 Accordingly, we deny the Special Counsel’s petition for review, affirm the
initial decision, and find that no disciplinary action is warranted in this case.
ORDER
¶58 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 RESPONDENT 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
10
The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if it finds the court’s reasoning persuasive, as we do here. See
Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).
36
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 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
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.