Opinion

Edward Hamel v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jan 26, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

explaining the deference the Board must give to an administrative judge’s credibility findings

How later courts described this case

explaining the deference the Board must give to an administrative judge’s credibility findings
observing that when more than one event or factual specification supports a single charge, proof of one or more , but not all, of the supporting specifications is sufficient to sustain the charge
declining to express any view as to whether an “employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision”
explaining that the agency’s more favorable treatment of similarly situated whistleblowers is not relevant to Carr factor 3

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

EDWARD HAMEL, DOCKET NUMBER

Appellant, DE-0752-15-0039-I-2

DEPARTMENT OF HOMELAND DATE: January 26, 2023

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jeffrey H. Jacobson, Esquire, Tucson, Arizona, for the appellant.

John B. Barkley, Esquire, Phoenix, Arizona, for the agency.

Jaime Diaz, El Paso, Texas, for the agency.

Charlotte Schmitt Marquez, New Orleans, Louisiana, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Leavitt recused himself and

did not participate in the adjudication of this appeal.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

FINAL ORDER

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

sustained 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

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 petit ioner 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 expand upon the administrative judge’s analysis as to why the

appellant is not entitled to corrective action in connection with his claim of

whistleblower reprisal and to correct the penalty analysis, we AFFIRM the initial

decision.

¶2 The instant decision involves the appellant’s removal appeal. 2 Hamel v.

Department of Homeland Security, MSPB Docket No. DE-0752-15-0039-I-1,

Initial Appeal File (IAF); Hamel v. Department of Homeland Security, MSPB

The appellant also has an individual right of action appeal pending in which he alleged

unlawful reprisal. See Hamel v. Department of Homeland Security, MSPB Docket

No. DE-1221-16-0046-W-1. Although that appeal involves many of the same

underlying facts as his removal appeal, the two appeals have been and continue to be

adjudicated separately. Joining them would not expedite case processing. See 5 C.F.R.

§ 1201.36(b) (explaining that joinder is appropriate if doing so would expedite case

processing and not adversely affect the interests of the parties).

Docket No. DE-0752-15-0039-I-2, Appeal File (AF-2). 3 There is no dispute

regarding the following facts set forth in the initial decision.

¶3 The appellant most recently held a GS-14 Resident Agent in Charge

(Supervisory Criminal Investigator) position with the agency’s U.S. Immigration

and Customs Enforcement (ICE), Homeland Security Investigations (HSI), in

Phoenix. AF-2, Tab 47, Initial Decision (ID) at 2. In 2009, he was involved in

an investigation with the Bureau of Alcohol, Tobacco, and Firearms (ATF) known

as Operation Fast & Furious. ID at 36. Based on his knowledge of the

investigation, the appellant disclosed that the ATF’s tactics included allowing

weapons purchased under suspicious circumstances to cross the United States’

border into Mexico, contrary to the agency’s mission and in violation of law. Id.

Later, in 2010, a Border Patrol Officer was murdered and weapons associated

with Fast & Furious were found at the crime scene. Id. Between January 2012

and July 2013, Department of Homeland Security (DHS) and Department of

Justice (DOJ) Offices of Inspectors General (OIG), DHS management, and

Congressional staff interviewed the appellant about Fast & Furious, and he

reportedly detailed his concerns with the investigation as well as his disagreement

with particular officials’ characterization of their involvement. ID at 37.

¶4 Meanwhile, in March 2013, the agency received a detailed but anonymous

complaint about the appellant’s conduct. IAF, Tab 10 at 40. After a lengthy

investigation about that complaint and other matters that arose from it, the agency

proposed his removal. Id. at 4-13. That May 2014 proposal charged the appellant

with (1) conduct unbecoming a supervisor, (2) failure to be forthright in reporting

damage to a Government-owned vehicle, and (3) lack of candor and/or failure to

The administrative judge dismissed the removal appeal without prejudice t o

accommodate the parties’ discovery needs. She subsequently refiled the appeal,

resulting in the two docket numbers associated with the one appeal. IAF, Tab 15; AF -2,

Tab 1.

cooperate with Office of Professional Responsibility (OPR) investigators. Id.

The deciding official removed him for the same reasons. IAF, Tab 8 at 20 -36.

¶5 After holding the requested hearing in this removal appeal,

the administrative judge sustained the action. ID at 49. For charge (1 ), she found

that the agency proved all 10 of the underlying specifications. ID at 7-12.

For charge (2), the administrative judge found that the agency did not meet its

burden. 4 ID at 12-15. For charge (3), she found that the agency proved

specifications 4 and 6, but failed to prove specifications 1-3, 5, or 7. ID at 15-32.

Although the appellant presented allegations of a due process violation and

harmful procedural error, the administrative judge found that he failed to prove

either. ID at 32-35. Concerning his retaliation affirmative defense,

the administrative judge found that the appellant presented a prima facie case of

reprisal, ID at 35-41, but the agency met its burden of proving that it would have

taken the same action absent his protected activity, ID at 41-44. Finally,

the administrative judge found that the agency proved nexus, and removal was the

maximum reasonable penalty for the specifications and charges sustained.

ID at 44-48.

¶6 The appellant has filed a petition for review. Hamel v. Department of

Homeland Security, MSPB Docket No. DE-0752-15-0039-I-2, Petition for Review

(PFR) File, Tab 1. The agency has filed a response. 5 PFR File, Tab 4.

On review, neither party disputes the administrative judge’s decision not to sustain

charge (2). Therefore, we find it unnecessary to address this charge further.

In a September 6, 2017 notice, the Board explained that the agency could file its

response on or before September 30, 2017. PFR File, Tab 2. The agency failed to mee t

that deadline. Instead, on October 2, 2017, the agency submitted both its response and

a request for an extension. PFR File, Tabs 3-4. Agency’s counsel declared, under

penalty of perjury, that he had been assisting in a prolonged family medical emerge ncy

throughout the agency’s response period. PFR File, Tab 3 at 3 -4. Agency’s counsel

further declared that the appellant’s counsel had no objection to the extension. Id.

Under these limited circumstances and absent any objection from the appellant, we have

considered the agency’s untimely response. See 5 C.F.R. § 1201.114(g) (recognizing

The administrative judge properly sustained charge (1), conduct unbecoming a

supervisor.

¶7 For charge (1), conduct unbecoming a supervisor, the agency’s removal

action included 10 specifications concerning various matters occurring between

2010 and 2012. ID at 7-12; IAF, Tab 10 at 6-8. While we need not recount all of

the alleged behavior, we note examples such as the appellant “rubbing [his]

crotch area” against a subordinate from behind, telling subordinates that he would

“skull fuck” them, asking subordinates “who wants to give me a blow job,”

saying “come suck my cock” to them, and pulling his weapon unnecessarily in

response to agents asking questions. IAF, Tab 10 at 6 -8.

¶8 Based on the appellant’s stipulations, the administrative judge found that

the agency proved all 10 specifications and the charge. ID at 7-12; AF-2,

Tabs 37, 39. The appellant does not dispute that finding on review.

The administrative judge properly sustained charge (3), lack of candor and/or

failure to cooperate with OPR investigators.

¶9 The appellant does dispute the administrative judge’s findings concerning

charge (3). PFR File, Tab 1 at 7-18. He generally argues that the administrative

judge erred by affirming specifications 4 and 6 of that charge using the same

rationale that she used to reject specifications 1, 2, 3, 5, and 7. Id. at 8. We are

not persuaded. Without considering whether the administrative judge properly

rejected the remaining specifications, which neither party challenges on review,

we find that she properly sustained specifications 4 and 6.

¶10 Although the agency labeled charge (3) “lack of candor and/or failure to

cooperate with OPR investigators,” the administrative judge determined that the

latter portion merged into the former. See Gunn v. U.S. Postal Service,

63 M.S.P.R. 513, 516-17 (1994) (finding no error in an administrative judge’s

decision to merge a charge of unacceptable conduct into charges of falsification

that the Board will excuse a late filing on review if a party shows good cause for the

delay).

and providing false information in an agency investigation because the agency did

not accuse the appellant of any additional specific misconduct under the

unacceptable conduct charge); ID at 15-16. Accordingly, she found that the

agency’s burden was to prove that the appellant exhibited a lack of candor by

knowingly providing incorrect or incomplete information. ID at 16 (citing

Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17 (2016)).

The appellant has not challenged the administrative judge’s findings in this

regard.

¶11 The administrative judge next recognized that each specification underlying

this charge was based on the appellant’s interview by a particular OPR

investigator. ID at 16. The appellant alleged that this individual harbored

animosity toward him because of prior conflict and that impacted his interv iew.

Id. The administrative judge agreed, based on various evidence and witness

testimony. ID at 16-17. Therefore, the administrative judge indicated that

she considered those circumstances while determining whether the appellant had

actually exhibited a lack of candor. ID at 17. For example, she did not sustain

one of the specifications because she found that the OPR investigator’s abrupt

line of questioning prevented the appellant from providing a complete answer.

ID at 18-19.

¶12 The first specification the administrative judge did sustain was

specification 4. ID at 23-25. According to that specification, the OPR

investigator asked the appellant if he walked into an agent’s cubicle and “act[ed]

like or actually unzip[ped] [his] zipper,” to which the appellant responded, “I

would describe the gesture more as adjusting or checking the zipper as opposed

to . . . mimicking.” IAF, Tab 10 at 9.

¶13 In connection with the charge of conduct unbecoming a supervisor, the

appellant stipulated that he approached three different subordinate agents from

behind on separate occasions, unzipped his pants, and when each agent turned

around in response to the noise of the appellant’s zipper going down, he laughed

and walked away. Id. at 6; AF-2, Tabs 37, 39. As the administrative judge

recognized, separate from the appellant’s stipulation, the record includes evidence

documenting employees either observing or being subjected to this behavior.

ID at 24; IAF, Tab 10 at 17, 19-20, 64, 303-04, Tab 11 at 303, 474-76, Tab 12

at 74-76.

¶14 When an underlying misconduct charge has been proven, a lack of candor

charge also must be sustained based on the appellant’s knowing failure to respond

truthfully or completely when questioned about matters relating to the proven

misconduct. Social Security Administration v. Steverson, 111 M.S.P.R. 649,

¶¶ 12-13 (2009), aff’d per curiam, 383 F. App’x 939 (Fed. Cir. 2010) (Table); see

Fargnoli, 123 M.S.P.R. 330, ¶ 17 (discussing the requirement to prove intent in

connection with a lack of candor charge). On review, even though the appellant

has admitted the underlying conduct, he argues that the administrative judge

should have interpreted his response to questioning about that conduct not as a

lack of candor, but as an attempt to qualify his answers in the face of hostile

questioning. PFR File, Tab 1 at 9-13. We disagree.

¶15 After reviewing the associated transcript for further context, i t is evident

that the appellant was not merely attempting to provide a meaningful explanation.

IAF, Tab 11 at 40-44. Instead, he knowingly provided inaccurate or incomplete

information. Id. Rather than acknowledge that his zipper behavior was

an inappropriate joke or antic that he had engaged in numerous times, the

appellant falsely suggested that he innocuously checked his zipper, “the same way

as we all check our zipper.” Id.; see Ludlum v. Department of Justice, 278 F.3d

1280, 1284 (Fed. Cir. 2002) (recognizing that lack of candor necessarily involves

an element of deception and “may involve a failure to disclose something

that . . . should have been disclosed . . . to make the given statement accurate and

complete”).

¶16 The appellant separately argues that the administrative judge failed to

recognize that his response to this line of questioning was specific to a period in

which he was a Border Enforcement Security Taskforce (BEST) Group

Supervisor. PFR File, Tab 1 at 12. This argument is unavailing. The appellant

stipulated that he engaged in the conduct at issue while a BEST Group

Supervisor. IAF, Tab 10 at 6; AF-2, Tabs 37, 39. His statement to the OPR

investigator should have encompassed this period, a s the OPR investigator asked

the appellant if he “ever” engaged in the conduct regarding his zipper.

IAF, Tab 11 at 40-44. Therefore, we agree with the administrative judge that the

agency proved specification 4.

¶17 The second specification the administrative judge sustained was

specification 6. ID at 28-30. According to that specification, the OPR

investigator asked the appellant if he ever referred to a particular Special Agent

as “Donny,” because that name reminded him of a mentally challenged childhood

classmate, to which the appellant responded by denying that he came up with the

nickname and indicating that he did not recall ever specifically referring to the

individual as “Donny.” IAF, Tab 10 at 10.

¶18 In connection with the charge of conduct unbecoming a supervisor,

the appellant stipulated that he gave or condoned the use of nicknames for his

subordinates, including referring to an agent “as ‘Bobby Boucher or Donny’

because he reminded [the appellant] of a childhood classmate who was slow and

challenged.” IAF, Tab 10 at 6-7; AF-2, Tabs 37, 39. In addition to the

appellant’s stipulations concerning this nickname and its origin, the record

includes other supportive evidence. E.g., IAF, Tab 10 at 19-20, Tab 12 at 39.

Most notably, the record includes an investigatory report in which the agent at

issue explained the nickname, consistent with the appellant’s stipulations.

IAF, Tab 10 at 19-20.

¶19 On review, the appellant argues that the administrative judge failed to

adequately account for the fact that the agent at issue harbored personal animus

towards him. PFR File, Tab 1 at 14-15. The appellant further suggests, as he did

in response to his proposed removal, that the nickname actuall y stemmed from a

misspelling on the agent’s nameplate, rather than originating from the appellant’s

memory of a mentally challenged child. Id. at 17; IAF, Tab 8 at 93. These

arguments are unpersuasive in the face of the appellant’s stipulations.

¶20 The appellant separately suggests that he reasonably could have forgotten

about the nickname by the time of the interview in which he was asked about it.

PFR File, Tab 1 at 15. However, the administrative judge made credibility

findings to the contrary, finding it implausible that the appellant would forget the

origin of the nickname or the existence of the real Donny. ID at 29 -30 (citing

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987)). We find no

basis for reaching a different conclusion. See Haebe v. Department of Justice,

288 F.3d 1288, 1299-1301 (Fed. Cir. 2002) (explaining the deference the Board

must give to an administrative judge’s credibility findings).

The agency proved that it would have removed the appellant in the absence of his

protected whistleblowing.

¶21 The appellant’s next argument on review concerns his retaliation

affirmative defense. PFR File, Tab 1 at 20-22. He argues that the administrative

judge erred by finding that the agency met its burden of proving that it would

have taken the same action, notwithstanding his protected whistleblowing

activity. Id. We disagree, but modify the initial decision to address this

argument and expand upon the administrative judge’s findings.

¶22 Under the Whistleblower Protection Enhancement Act of 2012, to prevail

on a prohibited personnel practice affirmative defense in a chapter 75 appeal that

independently could form the basis of an individual right of action (IRA) appeal,

once the agency proves its adverse action by a preponderance of the evidence, the

appellant must demonstrate by preponderant evidence that he made a protected

disclosure or engaged in protected activity and that the disclosure or activity was

a contributing factor in the adverse action. 5 U.S.C. § 1221(e)(1), (i); Alarid v.

Department of the Army, 122 M.S.P.R. 600, ¶ 12 (2015); Shibuya v. Department

of Agriculture, 119 M.S.P.R. 537, ¶ 19 (2013). If an appellant meets that burden,

the burden of persuasion shifts to the agency to prove by clear and convincing

evidence that it would have taken the same action in the absence of the

appellant’s protected disclosure or activity. 5 U.S.C. § 1221(e)(2); Shannon v.

Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 24 (2014). In determining

whether an agency has met this heightened burden, the Board will consider all

relevant factors, including the following Carr factors: (1) the strength of the

agency’s evidence in support of its action; (2) the existence and strength of any

motive to retaliate on the part of the agency officials who were involved in the

decision; and (3) any evidence that the agency takes similar actions against

employees who do not engage in protected whistleblowing activity, but who are

otherwise similarly situated. Soto v. Department of Veterans Affairs, 2022 MSPB

6, ¶ 11; see Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed.

Cir. 1999).

¶23 Here, the administrative judge found that the appellant met his burden.

ID at 35-41. First, she found that the appellant’s disclosures about the danger and

legality of the Fast & Furious operation were protected by 5 U.S.C. § 2302(b)(8).

ID at 36-38. She also found that the appellant’s disclosures to and cooperation

with the DOJ and DHS OIG were protected by section 2302(b)(9)(C).

ID at 37-38.

¶24 Next, based on the knowledge/timing test, the administrative judge found

that the appellant’s protected activity was a contributing factor in his proposed

removal. ID at 38-41; see Carey v. Department of Veterans Affairs,

93 M.S.P.R. 676, ¶¶ 10-11 (2003) (recognizing that an appellant may demonstrate

that his disclosure was a contributing factor in a personnel action through

circumstantial evidence, such as evidence that the official taking the personnel

action knew of the disclosure, and that the personnel action occurred within a

period of time such that a reasonable person could conclude that the disclosure

was a contributing factor in the personnel action). She found that the knowledge

prong was satisfied because the entire agency had actual or constructive

knowledge of the appellant’s protected activity after it was revealed in an OIG

report on the Fast & Furious operation. ID at 38-41. She found that the timing

prong was satisfied because the agency began its investigat ion into the appellant’s

conduct around the time of the OIG report and proposed his removal within

15 months of that report. ID at 40-41. Neither party challenges this finding on

review and we decline to disturb it.

¶25 Although the administrative judge found that the appellant met his burden,

she also determined that the agency proved, by clear and convincing evidence,

that it would have taken the same action, notwithstanding the appellant’s

protected activity. ID at 41-44. First, she found that the agency’s evidence in

support of the appellant’s removal was very strong. ID at 42. Next, she found

that there was nothing to connect the Disciplinary and Adverse Action Panel

(DAAP) that proposed the appellant’s removal with anyone who was the subject

of the appellant’s disclosures. ID at 43. Further, the deciding official was

altogether unaware of the appellant’s role in the Fast & Furious matter , and those

who were aware and had the most motive to retaliate were not involved in the

appellant’s removal. ID at 42-43. Lastly, she found that the agency had similarly

removed several other employees who exhibited a lack of candor in responding to

some type of investigation. 6 ID at 43.

As we previously noted, the third Carr factor concerns any evidence that the agency

takes similar actions against employees who do not engage in protected whistleblowing

activity, but who are otherwise similarly situated. See Siler v. Environmental

Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018) (explaining that the agency’s

more favorable treatment of similarly situated whistleblowers is not relevant to Carr

factor 3). In the initial decision, the administrative judge did not indicate whether the

similarly situated employees she considered were non-whistleblowers. ID at 43. The

evidence she cited was the agency’s documentation of several other employees who

were removed for conduct similar to the appellant’s. AF -2, Tab 28 at 13-51. The

agency’s representative submitted a statement under penalty of perjury, which the

appellant does not contest, indicating that these individuals were non-whistleblowers.

Id. at 3, 9-10. A statement signed under penalty of perjury and not rebutted is

competent evidence of the assertions it contains. Coles v. U.S. Postal Service,

¶26 On review, rather than disputing the specific findings that the

administrative judge did make, the appellant argues that she ignored a key point

pertaining to his reprisal claim. PFR File, Tab 1 at 20 -22. According to the

appellant, the administrative judge should have ruled on whether the anonymous

complaint about his conduct was likely motivated by retaliatory animus. Id.

Under this theory, the appellant suggests that if it were not for his protected

activity, there would have been no anonymous complaint, no OPR investigation

stemming from that complaint, and no removal action stemming from that

investigation. Id.

¶27 The appellant is essentially arguing that he may have been subjected to

retaliation by investigation. An investigation is not per se a personnel action but

may effectively fall within the definition of a personnel a ction, such as a

significant change in duties, responsibilities, or working conditions. Spivey v.

Department of Justice, 2022 MSPB 24, ¶¶ 10-11 (citations omitted). This is

particularly so if an investigation is one of several actions underlying a hostile

work environment. However, the appellant has not alleged that he was subject to

a hostile work environment in this case or his IRA appeal. Separately, it is proper

to consider evidence regarding an investigation if it is so closely related to a

personnel action, such as the appellant’s removal, that it could have been a

pretext for gathering information to retaliate for whistleblowing . E.g., Skarada v.

Department of Veterans Affairs, 2022 MSPB 17, ¶ 18 n.4; Mattil v. Department of

State, 118 M.S.P.R. 662, ¶ 21 (2012).

¶28 To address the appellant’s argument in this context, it is worth recounting

some pertinent events that occurred during the period leading up to the

anonymous complaint. In late March 2012, one of the appellant’s subordinates,

identified here as subordinate A, met with the appellant’s first-level supervisor,

the Assistant Special Agent in Charge (ASAC), to complain that the appellant had

105 M.S.P.R. 516, ¶ 12 (2007). Therefore, we credit the agency’s characterization of

the comparator evidence as concerning non-whistleblowers.

engaged in behavior consistent with that which makes up the conduct unbecoming

charge in this appeal. 7 IAF, Tab 10 at 66-68. For example, he complained that

the appellant had propositioned him for oral sex and rubbed his crotch on

subordinate A. Id. at 64-71. According to subordinate A, he further complained

that the appellant was making veiled threats by repeatedly telling other employees

to search for him on the internet to aid in the appellant’s “own kind of

investigation of [the subordinate].” Id. at 68-71.

¶29 Days after subordinate A made this complaint to the ASAC, in early

April 2012, the appellant sent a memo to the ASAC, describing how

subordinate A had exhibited performance deficiencies and misconduct. AF-2,

Tab 21 at 29-31. In or around March 2013, subordinate A reported that he

submitted similar complaints about the appellant’s behavior to the “ICE [office of

equal employment opportunity (EEO)] and [the] Office of Special Counsel.”

IAF, Tab 10 at 50-52. He reported doing so after deciding that the ASAC had not

bothered to investigate, much less remedy, his prior allegations about the

appellant. Id. at 75. The ASAC, on the other hand, indicated in a later statement

that he doubted subordinate A’s complaints and found them unspecific, and that

subordinate A’s removal was later proposed as a result of information

he disclosed to the ASAC concerning subordinate A’s own employment history,

but the proposal was later vacated over the ASAC’s apparent objections.

IAF, Tab 9 at 87, Tab 10 at 47-48.

¶30 It was a different complaint, dated February 2013 and reportedly received in

March 2013, that sparked the OPR investigation which resulted in the appellant’s

removal. IAF, Tab 10 at 15, 40. That complaint was addressed to the agency’s

OIG, the agency’s OPR, and Congressional offices. Id. at 40. Though unsigned,

the nature and text of the complaint strongly suggests that this complaint was

written by one of the appellant’s current or former male subordinates. Id. The

We have omitted any reference to this individual’s name t o protect his privacy.

complainant described himself as a “VICTIM/SPECIAL AGENT” of the HSI

office in Phoenix and a “JUNIOR AGENT” who was not including his name out

of fear of reprisal. Id. This description is consistent with subordinate A’s status

as a relatively new employee, who started with the agency in January 2012.

Id. at 42, 47, 49. The author of the anonymous complaint also described himself

as a victim of the appellant’s sexual harassment of male agents, which

he indicated as happening in the presence of female agents. Id. at 40. For

example, the complainant alleged that the appellant had asked him to perform oral

sex on the appellant and had rubbed his crotch on the complainant. Id. Not only

are the incidents described in the anonymous complaint similar to those

previously described by subordinate A, but subordinate A also indicated, when

interviewed as part of the OPR investigation, that the appellant engaged in

misconduct in front of female agents. Id. at 52-53, 57. Elsewhere, the

anonymous complaint describes the appellant as being able to get away with

harassing his employees in this way because the appellant was a favorite of the

appellant’s first-, second-, and third-level supervisors, including the ASAC, all of

whom the complaint identified by name and title. Id. at 40. According to the

anonymous complainant, this was illustrated by the fact that this management

chain had just promoted the appellant. Id. This allegation that the appellant was

favored and protected is also similar to the subordinate A’s description of the

appellant to OPR as one of management’s “top guys,” and his expressed hesitance

to report the appellant’s misconduct for that reason. Id. at 67.

¶31 Subordinate A indicated that he was not the source of the anonymous

complaint. Id. at 50. Nevertheless, we find it highly likely that this anonymous

complaint was authored by him or some other male subordinate of the appellant’s

who was subjected to the appellant’s inappropriate behavior. 8 That explains the

Although this subordinate was an approved witness, AF-2, Tab 23 at 2, he did not

testify at the hearing, AF-2, Speaker Sheets for Hearing. Our discussion of his

reporting about the appellant instead stems from the subordinate’s tr anscribed interview

consistency of the anonymous complaint with the numerous interviews with

the appellant’s employees about his behavior and the shared fears of him

retaliating, as these employees believed to have happened to subordinate A.

E.g., IAF, Tab 10 at 16-35, 50-52, 65-71. To illustrate with an example, one

other direct report of the appellant’s described being subjected to the same type

of “hazing” by the appellant. Id. at 20-21. He indicated that he feared reprisal if

he complained, and nearly resigned for these reasons before ultimately

transferring to escape the appellant’s abuse. Id.

¶32 On review, the appellant has not offered any evidence or persuasive theory

about someone other than an employee that had reported to him authoring the

anonymous complaint. PFR File, Tab 1 at 20-22. Below, he suggested that it

may have been his third-level supervisor, the Special Agent in Charge (SAC).

AF-2, Tab 15 at 8-9. The appellant advanced this theory based on assertions that

the SAC was a recipient of the appellant’s Fast & Furious disclosures, he was the

official most implicated by the disclosures, he made negative comments about the

appellant in the aftermath, and he was involved in the appellant’s placement on

administrative leave pending removal. Id. at 8-9. The appellant presented this

theory about the SAC authoring the anonymous complaint, despite the complaint

specifically naming the SAC as an individual who favored the appellant

and causing employees to hesitate in filing any complaint against him.

IAF, Tab 10 at 40.

¶33 We recognize, as the appellant has, that the anonymous complaint occurred

just after some select agency officials, possibly including the SAC, got a preview

with OPR investigators, in June 2013. IAF, Tab 10 at 45. The administrative judge

found that one small portion of the subordinate’s OPR testimony was not credible,

regarding a specific instance of the appellant stating that he would “ skull fuck” this

subordinate. ID at 21. Nevertheless, regardless of the subordinate’s credibility as to

this one instance, we find the testimony, generally, is evidence of the identity of the

anonymous complaint. Further, much of his other testimony was corroborated by

numerous others.

of OIG’s forthcoming Fast & Furious report. AF-2, Tab 21 at 53 (final report,

dated March 22, 2013), 121 (agency’s January 17, 2013 comments provided for

the draft report). For that reason, it is within the realm of possibility that the

SAC or someone else who was not subordinate to the appellant but was

implicated by the forthcoming Fast & Furious report could have conspired against

the appellant by authoring the anonymous complaint. But we find that highly

improbable. In the absence of specific evidence to the contrary, we find it highly

probable that the anonymous complaint about the appellant’s behavior was

authored by those who had intimate knowledge of that behavior, had endured that

behavior, and feared reprisal for reporting that behavior.

¶34 We also find no reason to conclude that those who likely authored the

anonymous complaint were motivated by the appellant’s whistleblowing when

they disclosed their abuse at the hands of the appellant. If they even knew of the

appellant’s whistleblowing, these lower-level employees do not appear to have

been implicated by it. The whistleblowing occurred before some of them had

even joined the agency and the whistleblowing primarily implicated two Special

Agents in Charge or other “leadership” for allowing Fast & Furious to proceed

over the objections of lower-level agents. 9 E.g., AF-2, Tab 21 at 56, Tab 26

at 5-8.

¶35 Though not specifically argued by the appellant, we have next considered

whether any of the parties that acted on the anonymous complaint were

improperly motivated by the appellant’s whistleblowing and using the anonymous

complaint as a pretext to investigate and retaliate . See Skarada, 2022 MSPB 17,

¶ 18 n.4. This includes both those with OPR that decided to investigate the

Because we do not find that the anonymous complaint by a subordinate was motivated

by the appellant’s whistleblowing, we need not decide whether the agency could be held

responsible for the same. See Staub v. Proctor Hospital, 562 U.S. 411, 422 n.4 (2011)

(declining to express any view as to whether an “employer would be liable if a

co-worker, rather than a supervisor, committed a discriminatory act that influenced the

ultimate employment decision”).

complaint and then did investigate, as well as the DAAP that acted upon OPR’s

referral by proposing the appellant’s removal. Below, the administrative judge

found that OPR’s own leadership initiated and controlled its investigation.

ID at 43. She also found no reason to conclude that those implicated by the

appellant’s whistleblowing had spoken to the DAAP or that the DAAP was

otherwise motivated to retaliate against the appellant. Id. We modify these

findings to acknowledge that none of these individuals seem to be personally

implicated by the appellant’s whistleblowing, but they still may have harbored

some institutional motive to retaliate, which the administrative judge failed to

recognize. See Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 28-29

(discussing how agency officials as representatives of its general institutional

interests may have a motive to retaliate, even if they were not directly implicated

by a disclosure, such as when the disclosed wrongdoing was egregious and

generated significant negative publicity). However, we have not reached a

different result as to the agency’s overall burden.

¶36 The Board does not view the Carr factors as discrete elements, each of

which the agency must prove by clear and convincing evidence, but rather weighs

these factors together to determine whether the evidence is clear and convincing

as a whole. Soto, 2022 MSPB 6, ¶ 13. To further illustrate this point, the Board

has explained that it is not correct to state that an agency may “prevail ” on a Carr

factor, or that it must establish a Carr factor by any particular quantum of

evidence. Id. On balance, the record contains clear and convincing evidence

that the agency would have taken the same removal action in the absence of the

appellant’s protected whistleblowing. Agency officials had some motive to

retaliate, but evidence in support of the appellant’s removal action is very strong

and the agency has removed several similarly situated non-whistleblowers. The

appellant’s suggestion that the investigation may have been a pretext for

retaliating is not persuasive, particularly because we find that the investigation

was the natural result of his subordinates complaining of sexual harassment or

even assault. Cf., Russell v. Department of Justice, 76 M.S.P.R. 317, 325-28

(1997) (granting corrective action when an employee’s removal was precipitated

by investigations that were initiated by individuals who had just days earlier been

the subject of the employee’s whistleblowing and there was no evidence that

these individuals referred similarly situated non-whistleblowers for

investigation).

Removal is the appropriate penalty.

¶37 In an adverse action appeal such as this, when some but not all charges are

sustained, the Board will carefully consider whether the sustained charges

merited the penalty imposed by the agency. Douglas v. Veterans Administration,

5 M.S.P.R. 280, 308 (1981). The Board may mitigate the agency’s penalty to the

maximum reasonable penalty so long as the agency has not indicated either in its

final decision or in proceedings before the Board that it desires for a lesser

penalty to be imposed if fewer than all of the charges are sustained. Lachance v.

Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999).

¶38 As detailed above, the administrative judge sustained charge (1) and all 10

of its underlying specifications, as well as charge (3) and 2 of its underlying

specifications. ID at 7-12, 23-25, 28-30; Burroughs v. Department of the Army,

918 F.2d 170, 172 (Fed. Cir. 1990) (observing that when more than one event or

factual specification supports a single charge, proof of one or more , but not all, of

the supporting specifications is sufficient to sustain the charge ). The deciding

official noted that he would have demoted the appellant if the case only involved

charge (1). IAF, Tab 8 at 26. He also indicated that charge (3) was the most

serious charge, “tak[ing] the penalty from a demotion to a removal.” Id. at 25.

However, he did not explicitly state what penalty he would have selected under

the specific circumstances before us.

¶39 The administrative judge found that, contrary to the deciding official’s

determination, charge (1) would support the appellant’s removal, by itself.

ID at 46. She also disagreed with the seriousness the deciding official attached to

charge (3). ID at 47. Therefore, the administrative judge essentially f lipped the

seriousness afforded to each of the charges by the deciding official, then

concluded that removal was still the maximum reasonable penalty. ID at 46 -48.

¶40 On review, the appellant argues that the administrative judge’s penalty

analysis is flawed because she substituted her judgment for that of the agency.

PFR File, Tab 1 at 18-20. We agree and modify the initial decision accordingly.

Nevertheless, we still find that removal is appropriate.

¶41 On the one hand, as the deciding official noted, the appellant had

approximately 18 years of outstanding service without any prior discipline.

IAF, Tab 8 at 26; see Reid v. Department of the Navy, 118 M.S.P.R. 396, ¶ 30

(2012) (finding 18 years of service with positive performance and no prior

discipline was a mitigating factor). On the other hand, the appellant is held to a

higher standard of honesty and integrity as a result of his law enforcement

position. See Prather v. Department of Justice, 117 M.S.P.R. 137, ¶ 36 (2011).

He also is held to a higher standard as a supervisor. See Edwards v. U.S. Postal

Service, 116 M.S.P.R. 173, ¶ 14 (2010) Further, while the deciding official

determined that the appellant’s conduct unbecoming would not warrant removal,

by itself, he described it as a shock to the consci ence. IAF, Tab 8 at 25. He also

indicated that the appellant’s subsequent lack of candor is quite ser ious, affecting

the value he could contribute to the agency. Id. at 25-26. We agree on both

counts. See, e.g., Alberto v. Department of Veterans Affairs, 98 M.S.P.R. 50, ¶¶

7-12 (2004) (affirming the penalty of removal for a supervisor that exhibited a

pattern of inappropriate and offensive misconduct, including sexually insulting

jokes), aff’d per curiam, No. 05-3090, 2005 WL 1368150 (Fed. Cir. June 10,

2005); Ludlum v. Department of Justice, 87 M.S.P.R. 56, ¶¶ 28-29 (2000)

(recognizing that an employee’s lack of candor is a serious offense that strikes at

the heart of the employer-employee relationship), aff’d, 278 F.3d 1280 (Fed. Cir.

2002). While the deciding official suggested that the appellant had shown some

remorse, he also recognized that the appellant’s initial position was to “hedge his

bets” before the OPR investigators. IAF, Tab 8 at 24. According to the deciding

official, the appellant’s responses called into question his rehabilitation potential.

Id. at 26. Again, we agree. See, e.g., Levinsky v. Department of Justice,

99 M.S.P.R. 574, ¶ 31 (2005) (finding that an appellant’s expressions of remorse

were not significantly mitigating because his responses to the allegations against

him did not appear to reflect actual contrition), aff’d, 208 F. App’x 925 (Fed. Cir.

2006).

¶42 Even though there are significant mitigating factors and the agency failed to

prove all its charges and specifications, we find that removal remains the

maximum reasonable penalty. See, e.g., Dunn v. Department of the Air Force,

96 M.S.P.R. 166, ¶¶ 12-18 (2004) (finding that removal was the appropriate

penalty for conduct unbecoming and lack of candor, even though the empl oyee

had 28 years of spotless service), aff’d per curiam, 139 F. App’x 280 (Fed. Cir.

2005). While the appellant has correctly noted that the administrative judge’s

penalty analysis was flawed, and we have modified the analysis accordingly,

he has failed to identify any basis for us to conclude that a lesser penalty is

warranted.

¶43 Accordingly, we affirm the initial decision as modified herein.

NOTICE OF APPEAL RIGHTS 10

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 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

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.

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.

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 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 any court

of appeals of competent jurisdiction. 11 The court of appeals must receive your

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.

petition for 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