Opinion

Michael Stevenson v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Feb 16, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL E. STEVENSON, JR., DOCKET NUMBER

Appellant, DA-0714-19-0524-I-1

DEPARTMENT OF VETERANS DATE: February 16, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael E. Stevenson, Jr., Piedmont, Oklahoma, pro se.

Chau Phan, Esquire, Denver, Colorado, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed his removal under the Department of Veterans Affairs Accountability

and Whistleblower Protection Act of 2017, Pub. L. No. 115 -41, 131 Stat. 862

(VA Accountability Act) (codified in relevant part, as amended, at 38 U.S.C.

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

§ 714). For the reasons set forth below, we GRANT the petition for review and

REVERSE the initial decision. The appellant’s removal is REVERSED.

BACKGROUND

¶2 The appellant was a GS-08 Supervisory Police Officer (Lieutenant) for the

Police Service at the agency’s Oklahoma City Veterans Administration Medical

Center. Initial Appeal File (IAF), Tab 4 at 12. On July 18, 2018, the agency

proposed the appellant’s removal under 38 U.S.C. § 714 based on an unlabeled

narrative charge describing various acts of alleged misconduct, including harsh

and unfair treatment of subordinates, misuse of security cameras, and a heated

verbal altercation with another Supervisory Police Officer. Id. at 55-57. After

the appellant responded, the agency issued a decision removing him effective

September 19, 2019. Id. at 12-15, 21-54.

¶3 The appellant filed a Board appeal, contesting the charges and the penalt y

and raising affirmative defenses of retaliation for equal employment opportunity

(EEO) and whistleblowing activity. IAF, Tab 1 at 3, 5, Tab 10 at 3. He did not

request a hearing. IAF, Tab 1 at 2. After the close of the record, the

administrative judge issued an initial decision affirming the appellant’s removal.

IAF, Tab 17, Initial Decision (ID). He sustained the charge, finding “that the

agency established the appellant’s conduct created a work environmen t where he

misused legitimate agency surveillance equipment and objectively intimidated

and caused fear among his subordinate employees.” ID at 6-13. He also denied

the appellant’s affirmative defenses. Regarding the appellant’s whistleblower

defense, the administrative judge found that the appellant proved that he engaged

in protected activity that was a contributing factor in his removal but that the

agency proved by clear and convincing evidence that it would have removed him

even in the absence of that activity. ID at 13-18. Regarding the appellant’s

defense of retaliation for EEO activity, the administrative judge found that the

appellant failed to show that his EEO activity was a motivating factor in his

removal. ID at 18-21. Finally, the administrative judge acknowledged that the

appellant disputed the appropriateness of the penalty, but he declined to reach the

issue on the basis that 38 U.S.C. § 714 prohibits mitigation of the agency’s

chosen penalty. ID at 21.

¶4 The appellant has filed a petition for review, arguing that some of the

evidence upon which the administrative judge relied was not credible. Petition

for Review (PFR) File, Tab 1. He has submitted, for the first time, various

recordings and transcripts of conversations that he had with several agency

employees. PFR File, Tabs 3, 6. The agency has filed a response. PFR File,

Tab 7.

ANALYSIS

¶5 In an appeal of an adverse action taken under 38 U.S.C. § 714(a), the

agency bears the burden of proving its charges by substantial evidence.

38 U.S.C. § 714(d)(2)(a). If the agency meets this burden, the Board may not

mitigate the agency’s chosen penalty, but it is nevertheless required to review the

penalty as part of the agency’s overall decision. 2 38 U.S.C. § 714(d)(2)(B),

(3)(C); Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1375-79 (Fed.

Cir. 2020).

¶6 The agency removed the appellant based on a single, unlabeled narrative

charge:

As a Supervisory Police Officer, you are tasked with leading a team

and directly overseeing and monitoring the activities of police

personnel assigned to you. In this position, you have created a

culture of fear and intimidation. You have threatened employee s

with disciplinary action, including termination, over minor offenses.

You target certain employees for harsher treatment, to include

excessive monitoring of employees on surveillance cameras. At

The appellant does not contest the administrative judge’s findings on his affirmative

defenses of whistleblower retaliation and reprisal for EEO activity, and we find no

reason to disturb them. See 5 C.F.R. § 1201.115 (“The Board normally will consider

only issued raised in a timely filed petition or cross petition for review.”).

times you have even used the surveillance cameras to moni tor

women at the hospital, making inappropriate comments about their

bodies. The cumulative effect of your conduct has had a detrimental

impact on the work environment. Your unprofessional behavior has

also spread into your interactions with peers, as de monstrated by

your interaction with [another Supervisory Police Officer] on the

first floor public hallway of the VA Health Care System. During this

interaction on or about February 7, 2018, you spoke in an aggressive

manner, used strong (at times profane) language, spoke at a raised

volume, and displayed threatening behaviors or gestures.

IAF, Tab 4 at 55. It is well settled that an agency is not required to affix a label

to a charge but may simply describe actions that constitute misbehavior in

narrative form in its charge letter. Otero v. U.S. Postal Service, 73 M.S.P.R. 198,

202 (1997). Furthermore, an agency is required to prove o nly the essence of its

charge and need not prove each factual specification supporting the charge.

Hicks v. Department of the Treasury, 62 M.S.P.R. 71, 74 (1994), aff’d, 48 F.3d

1235 (Fed. Cir. 1995) (Table). In this case, the administrative judge found, and

neither party disputes, that the essence of the agency’s charge was that “the

appellant, as a supervisor, engaged in unprofessional, intim idating, and

aggressive conduct that was detrimental to the agency’s work environment.” ID

at 7.

¶7 The administrative judge found the agency met its burden to prove the

charge. First, he considered the matter of the altercation between the appellant

and the other Supervisory Police Officer. ID at 7-8. The two men differed in

their accounts of the altercation, but after considering their statements and the

deciding official’s description of the audio recording that the appellant made of

the encounter, he concluded that the appellant’s actions were inappropriate. ID

at 7-8; IAF, Tab 4 at 126-38, Tab 15 at 25. Second, the administrative judge

considered the remainder of the charge, which concerned more generalized

allegations of misconduct, including bullying subordinates and the misuse of

surveillance cameras. After reviewing the investigatory interview statements of

several witnesses, the administrative judge concluded that the agency showed by

substantial evidence that the appellant committed the miscond uct as alleged. ID

at 8-13; IAF, Tab 4 at 58-108.

¶8 On petition for review, the appellant disputes the administrative judge’s

findings of fact and credibility determinations, and he seeks to introduce several

pieces of evidence that he claims were previously unavailable. PFR File, Tab 1.

We do not reach these arguments because we find that developments in the case

law after the issuance of the initial decision require that the removal be reversed.

Specifically, after the initial decision in this appeal was issued, the Board and the

U.S. Court of Appeals for the Federal Circuit issued precedential opinions

addressing the application of the VA Accountability Act to events that occurred

before the date of its enactment.

¶9 In Sayers, 954 F.3d at 1380-82, the court found that 38 U.S.C. § 714 has

impermissible retroactive effect, and Congress did not authorize its retroactive

application. Therefore, the agency may not use the VA Accountability Act to

discipline an employee for matters that occurred before its effective date, June 23,

2017. Sayers, 954 F.3d at 1374, 1380-82. Subsequently, the court issued an

opinion in Brenner v. Department of Veterans Affairs, 990 F.3d 1313 (Fed. Cir.

2021), addressing the section 714 removal of an employee for performance issues

both predating and postdating June 23, 2017. The court in Brenner vacated the

petitioner’s removal and remanded the appeal to the Board to determine whether

the agency’s removal action was “supported by substantial evidence on the

evidence of record that postdates the Act.” Id. at 1330.

¶10 Finally, in Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 4,

29, the Board addressed the section 714 removal of an employee based on alleged

neglect of duty both predating and postdating the effective date of the VA

Accountability Act. The Board considered whether it would be possible to

sustain the agency’s action based solely on any alleged post-June 23, 2017

neglect of duty, but it concluded that the action must be reversed because the

underlying alleged instances of misconduct by the appellant’s subordinates “are

so factually interrelated that they cannot be fairly separated.” Id., ¶¶ 29-33

(quoting Boss v. Department of Homeland Security, 908 F.3d 1278, 1279,

1282-83 (Fed. Cir. 2018)).

¶11 In this case, as in Brenner and Wilson, the charge encompasses events that

occurred both before and after the effective date of the VA Accountability Act.

We have considered whether the charge might be sustained based solely on

appellant’s conduct after June 23, 2017. See Brenner, 990 F.3d at 1330.

However, after a careful review of the record, we have determined that this case

is indistinguishable from Wilson. As in Wilson, 2022 MSPB 7, ¶ 33, the notice of

proposed removal in this case does not distinguish between events that occurred

before and after the effective date of the Act, and the allegations as a whole are

rather vague, IAF, Tab 4 at 55. Apart from the February 7, 2018 altercation, the

proposal does not contain any specific dates or describe the alleged incidents.

Instead, the agency appears to have relied on numerous investigative interview

statements that it attached to the proposal in order to give the appellant specific

notice of the charges against him. 3 Id. at 65-133. A review of these statements

shows that they encompass allegations of misconduct from 2009 all the way

through the beginning of 2018. Id. In fact, excluding interview statements

related solely to the February 7, 2018 altercation, only four of the twelve

interview statements appear to be largely concerned with events occurring after

the enactment of the VA Accountability Act. IAF, Tab 4 at 78-83, 89-92, 99-104.

Of these four statements, only two of them could potentially lend significant

support to the charge, id. at 78-80, 89 92, the other two being generally favorable

to the appellant, id. at 81-83, 99 104. Thus, the large majority of the agency’s

allegations either concern events that predate June 23, 2017, or there is no

The Board has found that this approach may be sufficient to satisfy due process

requirements. Alvarado v. Department of the Air Force, 97 M.S.P.R. 389, ¶ 15 (2004).

We make no finding here as to whether the notice of the charges was sufficient to

permit the appellant to respond because we reverse the charge on different grounds, as

discussed below.

reliable way to determine when the matters described allegedly occurred. See

Wilson, 2022 MSPB 7, ¶ 31 (noting that only 1 of the 8 months for which the

agency charged the appellant with neglect of duty postdated the VA

Accountability Act).

¶12 Reading the charge as a whole, we also find that the allegations of

misconduct are so interrelated that they cannot be fairly separated. See id. The

appellant was charged with “creat[ing] a culture of fear and intimidation” through

unprofessional, intimidating, and aggressive conduct. IAF, Tab 1 at 55; ID at 7.

To our understanding, a workplace culture is created by cumulative actions over a

period of time. This understanding is consistent with the broad language in which

the agency couched its charge, as well as the expansive scope of information that

the agency included in its evidence file. IAF, Tab 4 at 55, 65-133. For these

reasons, we find that considering the appellant’s post-June 23, 2017 conduct in

isolation would be to take it out of the context in which it was meant to be

understood in the charge.

¶13 Finally, we observe that the agency’s choice of penalty, which is part of the

overall decision to be reviewed, Sayers, 954 F.3d at 1375-79, was heavily

influenced by allegations of misconduct that predate the VA Accountability Act.

Specifically, the deciding official considered that the appellant’s misconduct had

“been going on for a long period of time.” IAF, Tab 15 at 25. He also considered

to be “extremely serious” certain misuse of surveillance cameras that we find no

evidence of whatsoever during the post-June 23, 2017 time period. Therefore, not

only is the agency’s charge tainted by its impermissible consideration of pre -VA

Accountability Act misconduct, but its penalty determination is as well.

¶14 For these reasons, we find that the appellant’s removal must be reversed.

See Wilson, 2022 MSPB 7, ¶ 33. To the extent the agency wishes to take a new

adverse action based on events occurring after June 23, 2017, it may do so under

the procedures of 38 U.S.C. § 714 or 5 U.S.C. chapter 75. To the extent the

agency wishes to rely on evidence of misconduct that predates the Act, it must

proceed in accordance with 5 U.S.C. chapter 75. See Brenner, 990 F.3d at 1330.

ORDER

¶15 We ORDER the agency to cancel the removal action and restore the

appellant effective September 19, 2018. 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.

¶16 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal

Service regulations, as appropriate, 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.

¶17 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 of the actions it has

taken 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).

¶18 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 on 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).

¶19 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.

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 forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for a ttorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully f ollow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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, 10, 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

Board neither endorses the services provided by any attorney nor warran ts that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of

competent jurisdiction. 5 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the