Opinion

Timothy Joel v. Department of Justice

Court: Merit Systems Protection Board
Filed: Feb 1, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TIMOTHY M. JOEL, DOCKET NUMBER

Appellant, SF-0752-16-0058-I-1

DEPARTMENT OF JUSTICE, DATE: February 1, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Richard W. Stevens, Esquire, Washington, D.C., for the appellant.

Chief Employment Law, Washington, D.C., 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. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 id entified by the Board

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

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner ’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED by

this Final Order to apply under Charges 2 and 4 the correct legal standard for a

lack of candor charge, and to supplement the administrative judge ’s analysis of

the appellant’s retaliation and race discrimination claims, we AFFIRM the initial

decision.

BACKGROUND

¶2 The appellant, a preference-eligible veteran, was employed as a GS-13

Special Agent with the agency’s Federal Bureau of Investigation (FBI). Initial

Appeal File (IAF), Tab 1 at 2. On June 18, 2015, the Unit Chief of Adjudication

Unit I of the Office of Professional Responsibility (OPR) proposed the

appellant’s removal following an agency Office of Inspector General (OIG)

administrative inquiry into the appellant’s alleged conduct towards Y.K., a

Korean national the appellant had met through his work on alien smuggling

matters with the FBI and whom he aided in obtaining parole to remain in the

United States. IAF, Tab 14, Subtab 4e. The proposed removal was based on the

following four charges: (1) failure to report—administrative; (2) lack of candor

not under oath; (3) unprofessional conduct—off duty; and (4) lack of candor—

under oath. Id. at 3-5. On September 24, 2015, the OPR Assistant Director

issued a decision sustaining the proposed action and immediately removing the

appellant from Federal service. Id., Subtab 4a.

¶3 The appellant timely filed a Board appeal challenging the agency’s removal

action. IAF, Tab 1. In addition, he raised the following affirmative defenses:

discrimination based on race, national origin, ethnicity, sex, and marital status;

retaliation for prior protected equal employment opportunity (EEO) activity; due

process violation; and harmful procedural error. IAF, Tabs 1, 85. Following a

hearing, the administrative judge issued an initial decision affirming the agency’s

action. IAF, Tab 90, Initial Decision (ID). The administrative judge found that,

because the appellant is a preference-eligible veteran, the Board has jurisdiction

over the appeal. ID at 1. The administrative judge found that the agency proved

its four charges by a preponderance of the evidence and therefore he sustained the

agency’s charges. ID at 3-34. Upon considering the appellant’s affirmative

defenses, the administrative judge found that the appellant failed to prove that the

agency violated his constitutional due process rights or committed harmful

procedural error. ID at 34-39. In addition, the administrative judge determined

that the appellant failed to establish his race, national origin, ethnicity, sex, EEO

retaliation, and marital status discrimination claims. ID at 39-46. Finally, the

administrative judge found that the agency established the nexus requirement and

that the penalty of removal was reasonable under the circumstances. ID at 47-50.

¶4 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 3. He raises the following arguments on review: (1) the administrative

judge erred in sustaining the agency’s charges; (2) the administrative judge

improperly denied his race discrimination and retaliation affirmative defenses; 2

(3) the penalty of removal is excessive; and (4) the administrative judge abused

his discretion in denying his motion for a subpoena. Id. The agency has filed a

response to the appellant’s petition, and the appellant has filed a reply to the

agency’s response. PFR File, Tabs 7-8.

Because the appellant does not contest his remaining affirmative defenses, we do not

consider them.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly sustained the agency’s charges.

Charge 1: Failure to report—administrative

¶5 In support of this charge, the agency alleged that all FBI employees are

required to submit a Roommate Form when they live with a roommate. IAF, Tab

14, Subtab 4e at 4. The agency stated that, despite having lived with Y.K. for

several months at a time on various occasions, the appellant had failed to file the

required form. Id. The notice of proposed removal stated that the appellant’s

actions violated FBI Offense Code 5.7, which prohibits employees from failing to

inform appropriate FBI officials “about an administrative matter which the

employee knew, or should have known, was required by FBI or [Department of

Justice] regulation or policy to be reported.” Id. at 3-4.

¶6 Citing to Colston v. Department of the Army, 10 M.S.P.R. 158, 160 (1982),

the appellant contends that the charge should not be sustained because the agency

did not submit the text of the policy requiring the reporting of roommates into the

record below. PFR File, Tab 3 at 13. Furthermore, he asserts that the way the

regulation was paraphrased by the agency in the decision letter is unintelligible

and ambiguous. Id. at 13-14. He also contends that his delay in filing the

roommate form was due to his misunderstanding of the policy. Id. at 14. In

particular, he asserts that he waited to file the form after he had “been staying

some nights with Y.K.” because he understood a roommate situati on to be

long-term. Id. at 14-15. He further argues that the agency improperly charged

him with never filing a roommate form, and that the agency’s charge should fail

because the agency did not provide evidence of 30 days of consecutive

cohabitation. Id. at 14-15.

¶7 The appellant’s arguments do not provide a basis for disturbing the

administrative judge’s finding that the agency proved its charge. Unlike in

Colston, where the agency did not submit evidence of the specific procedures that

the appellant in that case was charged with violating, the agency in this case

presented sufficient evidence of its reporting policy to meet its burden of proving

the charge. 3 Specifically, in the decision letter, the OPR Assistant Director noted

that the “Cohabitant-Roommate Policy” requires that “anyone who has a

roommate or cohabitant that the employee is sharing living quarters with for

30 consecutive days or more must report at least 60 days in advance .” IAF,

Tab 14, Subtab 4a at 5.

¶8 Moreover, we agree with the administrative judge’s finding that the

appellant failed to abide by the agency’s roommate reporting policy and that

accordingly, he violated FBI Offense Code 5.7. Following a careful review of the

testimonial and documentary evidence, the administrative judge found that the

agency established by preponderant evidence that the appellant cohabitated or

lived with Y.K. for the periods between July 2012 and October 2012, and

February 2013 and March 2013. ID at 6-8. The administrative judge found that

the appellant did not file a “roommate report” with the agency until

October 2012, several months after first moving in with Y.K. in July 2 012. ID

at 7-9. The administrative judge considered the appellant ’s argument that he did

not live with Y.K. consecutively during this period and found that, while the

As previously noted, the appellant asserts that the way the regulation was paraphrased

by the agency in the decision letter is unintelligible and ambiguous . PFR File, Tab 3

at 13-14. To the extent the appellant is alleging that the agency violated his

constitutional due process rights by not providing him with a copy of the agency ’s

reporting policy on roommates with the notice of proposed removal, any such argument

lacks merit. Fundamental due process requires that notice of char ges against an

employee be sufficiently detailed to provide a meaningful opportunity to be heard.

Mason v. Department of the Navy, 70 M.S.P.R. 584, 586 (1996). As set forth above, the

notice of proposed removal clearly notified the appellant that the agency was charging

him with violating its roommate reporting policy. In addition, the appellant provided a

written response in which he defended himself against the charge and alleged that he

had, in fact, filed a roommate report. IAF, Tab 14, Subtab 4d at 2 ; see Yinat v.

Department of the Army, 101 M.S.P.R. 328, 333 (2005) (determining that, when an

appellant comes forward and refutes a charge made against him, the Board cannot find

that he was not given notice of the charge). Thus, the appellant has not shown that the

agency violated his constitutional due process rights by failing to provide hi m with a

copy of its roommate reporting policy.

appellant may have left Y.K.’s apartment at least one night per week, his

testimony established that he lived in Y.K.’s apartment throughout these periods

while paying her rent. ID at 9.

¶9 The appellant’s alleged misunderstanding of the meaning of “roommate”

does not provide grounds for disturbing the administrative judge ’s decision to

sustain the charge. The appellant does not allege that he was not aware of the

agency’s roommate reporting policy and we agree with the administrative judge’s

well-reasoned finding that, as a Special Agent with the FBI, the appellant knew or

should have known that he was required to report that he was living with Y.K. ID

at 10; see Micali v. Department of the Treasury, 56 M.S.P.R. 127, 131 (1992)

(sustaining the appellant’s removal based on a charge of failure to report his

spouse’s income on his Federal tax returns when the appellant had knowledge of

the relevant reporting requirement), aff’d, 11 F.3d 1070 (Fed. Cir. 1993) (Table).

¶10 The appellant is correct that the agency stated in the notice of proposed

removal that he did not file a Roommate Form. IAF, Tab 14, Subtab 4e at 4. As

previously noted, the administrative judge found that the appellant did file such a

form in October 2012. ID at 8. However, an agency need only prove the essence

of its charge and need not prove every factual specification. Hicks v. Department

of the Treasury, 62 M.S.P.R. 71, 74 (1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995)

(Table). We find that the agency has established the essence of its charge here.

Based on the foregoing, we find that the administrative judge correctly sustained

Charge 1.

Charge 2: Lack of candor not under oath

¶11 In support of charge 2, the agency provided the following narrative:

[y]ou knowingly provided false information when you told a

[Department of Homeland Security (DHS)] agent that you did not

know where Y.K. was or where she was living. You knew where she

lived, and in fact, she had spent the night at your apartment when

you received the call. You also failed to be fully forthright when

you purposely provided an old phone number for Y.K., and

concealed the material information that you knew her new number.

IAF, Tab 14, Subtab 4e at 4. The agency stated that the appellant ’s actions

violated FBI Offense Code 2.5, which prohibits an employee from “[k]nowingly

providing false information when making a verbal or written statement, not under

oath . . . when the employee is questioned about his conduct or the conduct of

another person.” Id.

¶12 In Fargnoli v. Department of Commerce, 123 M.S.P.R. 330 (2016), the

Board clarified the correct legal standard for a lack of candor charge. Relying on

Federal Circuit and Board precedent, the Board held that lack of candor requires

proof of the following elements: (1) that the employee gave incorrect or

incomplete information; and (2) that he did so knowingly. Id., ¶ 17. The

administrative judge did not apply Fargnoli in assessing this charge, and he stated

that the allegation in the specification that the appellant knowingly provided false

information appears to reflect the elements of a charge other than a lack of c andor

charge. ID at 11. We therefore modify the initial decision to reflect the proper

legal standard under Fargnoli for analyzing a lack of candor charge. However,

the administrative judge nonetheless made findings regarding the requisite

elements of proof. He found that the language of FBI Offense Code 2.5, which

was cited within the charge, prohibited employees from knowingly providing

false information. Id. He then went on to make comprehensive findings and

credibility determinations regarding the issue of whether the appellant knowingly

provided incomplete information. ID at 13-20. Thus, because the administrative

judge made comprehensive credibility determinations and findings regarding this

issue, his failure to rely on Fargnoli when assessing the agency’s charge does not

provide a basis for remanding the initial decision. Cf. Fargnoli, 123 M.S.P.R.

330, ¶ 18 (remanding for further analysis on the lack of candor charge when the

administrative judge made no findings as to whether the appellant knowingly

gave incorrect or incomplete information).

¶13 The appellant contends on review that the agency’s charge should not be

sustained because the DHS agent questioned him about what he knew, whereas

the agency charged him under FBI Offense Code 2.5 with providing incorrect

information regarding his and Y.K.’s conduct. PFR File, Tab 3 at 16-25. The

appellant further asserts that FBI Offense Code 2.5 requires that he know that the

individual asking him questions is a DHS agent, but that he did not. Id. at 25-26.

¶14 The administrative judge considered these arguments below, and found

them to be unavailing. He noted that the DHS agent was attempting to serve a

subpoena on Y.K., and that she called the appellant to seek information about the

whereabouts of Y.K. from the appellant because he had aided in her obtaining

parole. ID at 12-13. Because the DHS caller sought information about the

movement of Y.K. from the appellant, the DHS agent’s questions necessarily

sought information about the conduct of both Y.K. and the appellant. Id. We

agree with this finding. While the DHS agent may have sought information

regarding what the appellant knew about Y.K.’s conduct, her questions related to

the conduct of Y.K. and the appellant all the same; the appellant ’s attempts to

distinguish knowledge from conduct in an effort to render FBI Offense Code 2.5

inapplicable to the charge are frivolous.

¶15 Furthermore, by applying the factors set forth in Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458 (1987), 4 the administrative judge found the

appellant’s assertion that he did not know that he was being questioned by a DHS

agent to lack credibility. ID at 15. In particular, the administrative judge found

the appellant’s version of events to be inconsistent with his own testimony and

In Hillen, the Board articulated factors to consider in resolving credibility issues. The

Board held that, to resolve credibility issues, an administrative judge must identify the

factual questions in dispute, summarize the evidence on each disputed question, state

which version he believes, and explain in detail why he found the chosen version more

credible, considering such factors as: (1) the witness’s opportunity and capacity to

observe the event or act in question; (2) the witness’s character; (3) any prior

inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the

contradiction of the witness’s version of events by other evidence or its consistency

with other evidence; (6) the inherent improbability of the witness’s version of events;

and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453,

458 (1987).

with the record evidence, and to be inherently improbable. ID at 14-15. For

example, the administrative judge cited to the transcript of the telephone call

between the appellant and the DHS agent, during which the DHS agent stated she

was investigating a DHS matter multiple times and during which the appellant

discussed at length his actions to obtain parole for Y.K. and his living

arrangement with her. ID at 13-14; IAF, Tab 14, Subtab 4m. The administrative

judge noted that the appellant’s decision to discuss these matters indicated that he

was aware that he was communicating with another Government agent about Y.K.

ID at 14. The Board must defer to an administrative judge’s credibility

determinations when, as here, they are based, explicitly or implicitly, on

observing the demeanor of witnesses testifying at a hearing, and may overturn

such determinations only when it has “sufficiently sound” reasons for doing so.

Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). We find

that the appellant has not proffered sufficiently sound reasons to set aside the

administrative judge’s credibility finding regarding this issue.

¶16 Moreover, the administrative judge found, and the record reflects, that the

appellant did not provide the DHS agent with Y.K. ’s current phone number when

asked. ID at 15; IAF, Tab 14, Subtab 4m. Instead, he stated that he only had an

old phone number for her and that he did not know if it still worked. IAF,

Tab 14, Subtab 4m at 10. The appellant also denied knowing where Y.K. lived.

Id. at 6. The administrative judge found that the appellant knowingly conc ealed

or omitted material information when he told the DHS agent that he did not have

Y.K.’s current phone number because he testified that he had Y.K. ’s new phone

number on his phone. ID at 16-17; Hearing Transcript (HT) at 441 (testimony of

the appellant). Further, citing to the appellant’s testimony that Y.K. had stayed

with him the night before, the administrative judge found that the agency proved

the factual portion of the specification stating that the appellant knew where Y.K.

was living and that Y.K. had spent the night with him. ID at 18; HT at 409

(testimony of the appellant). The administrative judge noted that the appellant

testified that Y.K. was living in a particular apartment complex when not living

with the appellant. ID at 18-19; HT at 409 (testimony of the appellant).

Accordingly, the administrative judge found that the appellant knowingly

concealed false information from the DHS agent regarding where Y.K. lived. ID

at 19.

¶17 We discern no basis for disturbing the administrative judg e’s well-reasoned

and supported findings that the appellant knowingly provided false information to

the DHS agent, thereby violating FBI Offense Code 2.5. The agency, therefore,

established the requisite elements of proof for its lack of candor charge. See

Fargnoli, 123 M.S.P.R. 330, ¶ 17. Based on the foregoing, we find that the

administrative judge properly sustained Charge 2.

Charge 3: Unprofessional conduct—off duty

¶18 The agency provided the following narrative in support of charge 3 :

You were admonished several times by the DHS agent not to

mention the telephone call or the subpoena to Y.K. However, you

immediately returned to your apartment and informed Y.K. of the

call. You then advised her to depart the United States. You

intentionally attempted to interfere with official government action,

both when you told Y.K. about the call and when you told her to

return to her home country. As an FBI agent, your conduct

discredits the FBI and seriously calls into question your judgement

and character.

IAF, Tab 14, Subtab 4e at 4. The agency stated that the appellant ’s actions

violated FBI Offense Code 5.21, which prohibits employees from engaging in

off-duty conduct that dishonors the FBI or calls into question the character of the

employee. Id.

¶19 A charge of unprofessional conduct has no specific elements of proof; it is

established by providing that the employee committed the acts alleged in support

of the broad label. See Canada v. Department of Homeland Security,

113 M.S.P.R. 509, ¶ 9 (2010) (noting that a charge of improper conduct has no

specific elements of proof). We agree with the administrative judge’s finding that

the appellant engaged in the charged misconduct. As noted by the administrative

judge, the record reflects that the DHS agent instructed the appellant to not

mention the telephone call or subpoena to Y.K. ID at 21 ; IAF, Tab 14, Subtab 4m

at 21. The appellant testified that, following the call with the DHS agent, he met

with Y.K. to explain to her what a subpoena was. HT at 422 (testimony of the

appellant). Citing to Hillen, the administrative judge found that, to the extent the

appellant was alleging that he did not discuss the subpoena matter with Y.K. as

alleged, but rather, sought to educate her in general about subpoenas, any such

explanation lacked credibility. ID at 23. We discern no basis for disturbing this

credibility determination on review. See Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 105-06 (1997) (stating that the Board will defer to the credibility

findings of the administrative judge and will not grant a petition for review based

on a party’s mere disagreement with those findings).

¶20 The appellant contends on review that the charge cannot be sustained

because it requires proof that he disobeyed a direct order—that of the DHS

agent—and that he did not have a duty to obey directives by non-FBI personnel.

PFR File, Tab 3 at 27-29. The appellant argues that the charge cannot be

sustained unless his conduct was wrongful in some way, which it was not because

he had no duty to follow the DHS agent’s instructions. Id. at 29.

¶21 The appellant’s argument does not provide a basis for disturbing the initial

decision. Nothing in law or regulation requires an agency to affix a label to a

charge of misconduct, and an agency may simply describe actions that constitute

misbehavior in narrative form and have its discipline sustained if the efficiency of

the service suffers because of the misconduct. See Canada, 113 M.S.P.R. 509,

¶ 9. Here, the agency charged the appellant not with violating an order or

instruction, but rather with unprofessional conduct. As set forth above, the

agency proved that the appellant engaged in the charged misconduct. Moreover,

by citing to FBI Offense Code 5.21, the agency alleged that the charged

misconduct constituted misbehavior because it dishonored the FBI and called into

question the appellant’s judgment and character. We agree with the

administrative judge’s finding that the agency showed by preponderant evidence

that the sustained portions of the specification violated FBI Offense Code 5.21.

ID at 25. Accordingly, we find that the administrative judge correctly sustained

Charge 3.

Charge 4: Lack of candor—under oath

¶22 The agency provided the following narrative in support of this fourth

charge:

During an interview under oath, you told the OIG you had occasional

contact with Y.K. from 2009 to 2011, but you concealed the full

extent of your contacts with her. Phone and text message records

indicated that from 2009 to 2011, you were in frequent contact with

Y.K., calling her multiple times per week and exchanging numerous

text messages.

You also failed to be fully forthright when you were questioned

about how Y.K. paid her rent and expenses. You ass erted her

parents sent her money, and you also believed she had a boyfriend

who assisted with the expenses. You also stated your only monetary

contribution was half the monthly rent for the apartment you shared.

However, between 2009 and 2013, you provided Y.K. with regular

cash payments from your personal bank account totaling nearly

$20,000. Further, Y.K. told OIG investigators that in

September 2011, she was unable to work because she was sick, so

you had given her some money.

You knowingly provided false information when you told OIG

investigators that you and Y.K. had rented separate apartments after

March 2013. However, the two of you continued to live together for

three to four months.

IAF, Tab 14, Subtab 4e at 5. The agency stated that the app ellant’s misconduct

violated FBI Offense Code 2.6, which prohibits an employee from “[k]nowingly

providing false information in a verbal or written statement made under oath.”

Id.

¶23 The deciding official, however, did not sustain all of the charged

misconduct underlying Charge 4 in the proposal notice. IAF, Tab 14, Subtab 4a

at 8 n.5. Rather, she only sustained the second paragraph of the charge stating

that the appellant failed to be fully forthright when questioned about how Y.K.

paid her rent and expenses. Id. at 7-8.

¶24 As set forth above, a lack of candor charge requires proof of the following

elements: (1) that the employee gave incorrect or incomplete information; an d

(2) that he did so knowingly. Fargnoli, 123 M.S.P.R. 330, ¶ 17. As with

Charge 2, the administrative judge did not apply Fargnoli when assessing

whether the agency met its burden of proof under the charge. Therefore, we

modify the initial decision to reflect the correct legal standard under Fargnoli as

to Charge 4. However, as he did for Charge 2, the administrative judge made

comprehensive findings and credibility determinations regarding the elements of

proof that comprise a lack of candor charge in sustaining the charge.

¶25 In particular, following a careful review of the documentary and testimonial

evidence, the administrative judge found that the appellant concealed or omitted

financial information when questioned under oath by the OIG about how Y.K.

paid her rent and expenses. ID at 32. The administrative judge found that, while

the agency failed to adequately explain its calculations regarding its $20,000

total, the appellant already had transferred $29,451 to Y.K. when he was

questioned by the OIG on February 28, 2013. ID at 33 -34. Moreover, the

administrative judge found that the appellant failed to be fully forthright by not

disclosing these monetary amounts to the OIG. ID at 34. In addition, the

administrative judge found that the appellant knowingly concealed financial

information, and that accordingly, the agency established that he violated FBI

Offense Code 2.6. Id.

¶26 On review, the appellant appears to argue that the administrative judge

improperly found that he knowingly failed to be forthright. PFR File, Tab 3

at 32-33. He argues that his answers were correct within the context of the

interview, and that he did not understand that the OIG was seeking information on

all the funds he had provided Y.K. Id. at 33.

¶27 In finding that the appellant knowingly failed to be forthright in his answers

to the OIG, the administrative judge considered the appellant ’s assertion that his

answers to the OIG were based on a misunderstanding. ID at 32 -33. Relying on

the factors set forth in Hillen, including demeanor-based evidence, the

administrative judge found the appellant’s version of events to be lacking in

credibility. ID at 33. The appellant has not provided a sound reason for

disturbing these demeanor-based credibility findings on review. See Haebe,

288 F.3d at 1301. Thus, we agree with the administrative judge’s decision to

sustain Charge 4.

The administrative judge properly denied the appellant ’s race discrimination and

retaliation affirmative defenses.

¶28 In analyzing the appellant’s race discrimination and retaliation claims, the

administrative judge identified the legal standards set forth in Savage v.

Department of the Army, 122 M.S.P.R. 612 (2015), overruled in part by Pridgen

v. Office of Management & Budget, 2022 MSPB 31, ¶¶ 23-25. ID at 39-41.

When the administrative judge issued the initial decision, he did not have the

benefit of the Board’s decision in Gardner v. Department of Veterans Affairs,

123 M.S.P.R. 647 (2016), clarified by Pridgen, 2022 MSPB 31, ¶¶ 23-24. In

Gardner, 123 M.S.P.R. 647, ¶ 30, the Board clarified that Savage does not require

administrative judges to separate “direct” from “indirect” evidence.

¶29 Here, as in Gardner, 123 M.S.P.R. 647, ¶ 31, the administrative judge

discussed the distinction between direct and circumstantial evidence, but there is

no allegation that he disregarded any evidence because it was not direct or

circumstantial. Moreover, we find that the administrative judge properly

considered the documentary and testimonial evidence as a whole in determining

that the appellant failed to establish he was discriminated against because of his

Korean heritage or retaliated against for prior protected activity (filing a

complaint with the Ombudsman). Specifically, the administrative judge carefully

considered whether there was relevant comparator evidence and found that the

appellant presented no evidence that individuals outside of his race and/or

individuals who have not contacted the Ombudsman were treated more favorably

by the FBI. ID at 42. In addition, he found that there was nothing to suggest the

existence of suspicious timing, ambiguous statements oral or written, behavior

toward or comments directed at other employees in the protected group, and other

bits and pieces of evidence from which an inference of discriminatory intent

might be drawn, even when considered with the appellant’s unsupported

allegations. ID at 45. Moreover, the administrative judge found there was no

reason to believe the agency’s stated reason for the removal action was pretextual

given, inter alia, that all of the agency’s charges were sustained. ID at 46. The

administrative judge concluded that the appellant failed to establish these

affirmative defenses. Id.

¶30 The appellant challenges these findings on review, alleging that the

administrative judge disregarded evidence of temporal proximity. PFR File,

Tab 3 at 37-39. We find the appellant’s argument constitutes mere disagreement

with the administrative judge’s well-supported findings regarding the appellant’s

race discrimination and retaliation claims, and that his allegation does not provide

a basis for disturbing these findings. We therefore affirm the administrative

judge’s conclusion that the appellant failed to prove these affirmative defenses. 5

The appellant failed to show that the administrative judge abused his discretion

by denying the appellant’s motion for a subpoena.

¶31 Administrative judges have broad discretion in regulating discovery, and,

absent a showing that the administrative judge abused his discretion, the Board

will not find reversible error. Vores v. Department of the Army, 109 M.S.P.R.

191, ¶ 14 (2008), aff’d, 324 F. App’x 883 (Fed. Cir. 2009). A party may request a

Because we affirm the administrative judge’s finding that the appellant failed to meet

his initial burden to prove that race or retaliation for EEO activity were motivating

factors in the agency’s actions, we need not resolve the issue of whether the appel lant

proved that discrimination or retaliation was a “but-for” cause of the agency’s

decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.

subpoena to obtain the testimony of a witness and the Board has the authority to

issue a subpoena requiring the witness’s attendance. 5 C.F.R. § 1201.81(a). A

subpoena request must “be supported by a showing that the evidence sought is

directly material to the issues involved in the appeal.” 5 C.F.R. § 1201.81(c).

¶32 The appellant contends on review that the administrative judge abused his

discretion by denying his motion to subpoena R.R. for a deposition. PFR File,

Tab 3 at 35-37. He argues that R.R. was involved in the underlying investigation

and in his removal because R.R. sent an email regarding the appellant to the

Human Resources Department (HRD), instead of the Security Division. Id. at 36.

He further contends that R.R.’s testimony was relevant to his race discrimination

claim because he attacked the appellant’s Korean culture. Id. at 35.

¶33 Following a careful review of the evidence, the administrative judge found

that the appellant failed to meet his burden under 5 C.F.R. § 1201.81(c). IAF,

Tab 39 at 3-4. The administrative judge considered the appellant’s argument that

R.R. may have initiated the underlying investigation because he told the appellant

that this case was being referred to HRD instead of to the Security Division. Id.

at 3. The administrative judge further considered R.R.’s proffered testimony as it

referred to the appellant’s affirmative defenses, and found it to not be directly

material. Id. We agree with the administrative judge’s conclusion that the

appellant failed to meet the standard under 5 C.F.R. § 1201.81(c); thus, we find

that the appellant has failed to show that the administrative judge abused his

discretion in denying the motion to subpoena R.R.

The administrative judge correctly found that the agency established the nexus

requirement and that the penalty of removal was reasonable under the

circumstances.

¶34 The nexus requirement, for purposes of determining whether an agency has

shown that its action promotes the efficiency of the service, means there must be

a clear and direct relationship between the articulated grounds for an adverse

action and either the employee’s ability to accomplish his duties satisfactorily or

some other legitimate Government interest. Scheffler v. Department of the Army,

117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). The

Board has found that there is a sufficient nexus between an employee ’s

misconduct and the efficiency of the service when the sustained misconduct

concerned an employee’s lack of candor during an administrative inquiry.

Ludlum v. Department of Justice, 87 M.S.P.R. 56, ¶ 28 (2000), aff’d, 278 F.3d

1280 (Fed. Cir. 2002). Likewise, our reviewing court and the Board have found

that a sufficient nexus exists when certain types of unprofessional off-duty

conduct undermine the necessary trust and confidence in the agency’s missi on.

Brown v. Department of the Navy, 229 F.3d 1356 (Fed. Cir. 2000) (affirming the

Board’s determination that the agency established a nexus be tween the appellant’s

misconduct of having an adulterous affair with the wife of a Marine while he was

deployed overseas, given the appellant’s managerial position in an office

responsible for providing support to Marine families, including families of

Marines deployed overseas; the appellant’s misconduct undermined the necessary

trust and confidence of the agency’s mission, especially given that the wife of a

deployed Marine was a member of a unit that the appellant was directly

responsible for supporting; the court further agreed that removal was warranted

under the circumstances). We therefore find that the agency has met the nexus

requirement here.

¶35 When, as here, the agency’s charges have been sustained, the Board will

review an agency-imposed penalty only to determine if the agency considered all

of the relevant Douglas factors and exercised management discretion within

tolerable limits of reasonableness. 6 Portner v. Department of Justice,

119 M.S.P.R. 365, ¶ 10 (2013), overruled on other grounds by Singh v. U.S.

Postal Service, 2022 MSPB 15, ¶ 17. In determining whether the selected penalty

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of factors relevant to the penalty determination in

adverse actions.

is reasonable, the Board gives due deference to the agency’s discretion in

exercising its managerial function of maintaining employee discipline and

efficiency. Portner, 119 M.S.P.R. 365, ¶ 10. The Board will modify a penalty

only when it finds that the agency failed to weigh the relevant factors or that the

penalty the agency imposed clearly exceeded the bounds of reasonableness. Id.

However, if the deciding official failed to appropriately consider the relevant

factors, the Board need not defer to the agency’s penalty determination. Id.

¶36 The appellant contends on review that the penalty of removal is excessive.

PFR File, Tab 3 at 34. He alleges that, contrary to the administrative judge’s

finding, he disclosed that he was sharing a space with Y.K. Id. He also asserts

that the penalty is inconsistent with the agency’s table of penalties. Id.

¶37 The appellant’s arguments do not provide a basis for disturbing the

administrative judge’s finding that the deciding official considered all of the

relevant Douglas factors and exercised management discretion within tolerable

limits of reasonableness. In upholding the proposed penalty, the deciding official

considered the nature and seriousness of the misconduct and its relationship to the

appellant’s position as an FBI agent. IAF, Tab 14, Subtab 4a; see Gaines v.

Department of the Air Force, 94 M.S.P.R. 527, ¶ 9 (2003) (holding that in

evaluating a penalty, the Board will consider, first and foremost, the nature and

seriousness of the misconduct and its relationship to the employee ’s duties,

position, and responsibilities). Law enforcement officers, like the appellant, are

held to a higher standard of honesty and integrity. Prather v. Department of

Justice, 117 M.S.P.R. 137, ¶ 36 (2011). The deciding official recognized that the

appellant acknowledged during his oral response that he was at fault for not filing

a roommate report in a timely manner, but determined that, despite the appellant’s

acceptance of responsibility, the fact remains that he continued to act in an

obstructive manner during the OIG investigation. IAF, Tab 14, Subtab 4a at 9

n.6. She further determined that the penalty imposed was consistent with

corresponding agency offense codes. Id. at 8. She also considered mitigating

factors, such as the appellant’s successful ratings, service with the FBI, and the

stress he was under due to separation from family, but found these factors to be

outweighed by the seriousness of the sustained misconduct. HT at 227-29, 234

(testimony of the deciding official). In light of the above, we find that the

penalty of removal is reasonable under the circumstances of this case. See

Kamahele v. Department of Homeland Security, 108 M.S.P.R. 666, ¶¶ 2, 15

(2008) (finding that the removal penalty was reasonable when the appellant

demonstrated lack of candor and inappropriate conduct); Dunn v. Department of

the Air Force, 96 M.S.P.R. 166, ¶¶ 2, 12-18 (2004) (determining that removal was

reasonable when the employee engaged in conduct unbecoming and exhibited a

lack of candor), aff’d, 139 F. App’x 280 (Fed. Cir. 2005).

NOTICE OF APPEAL RIGHTS 7

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 appro priate

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 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 follow 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.

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.

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 warrants 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 d ecision 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 any court of appeals of

competent jurisdiction. 8 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B).

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.

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