Opinion

Craig Jeanquart v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Aug 17, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

sustaining the Board’s finding that a rebuttable presumption of nexus applied when an employee committed off-duty assault and battery of a child

How later courts described this case

sustaining the Board’s finding that a rebuttable presumption of nexus applied when an employee committed off-duty assault and battery of a child

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CRAIG T. JEANQUART, DOCKET NUMBER

Appellant, CH-0752-14-0565-I-1

DEPARTMENT OF VETERANS DATE: August 17, 2022

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Craig T. Jeanquart, Grand Chute, Wisconsin, pro se.

Scott Lawrence, Esquire, Minneapolis, Minnesota, 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

sustained his removal. Generally, we grant petitions such as this one only when:

the initial decision contains erroneous findings of material fact; the initial

decision is based on an erroneous interpretation of statute or regulation or 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 identified by the Board

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

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 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:

(1) find that the Board will not consider the appellant’s untimely raised claim that

he was subjected to double punishment for the same misconduct; and (2) address

the appellant’s allegations on review that the administrative judge w as biased and

failed to provide him with adequate guidance as a pro se litigant, we AFFIRM the

initial decision.

BACKGROUND

¶2 Prior to his removal, the appellant served as an Advance Medical Support

Assistant with the agency’s Milwaukee Veterans Affairs Healthcare System

Community-Based Outpatient Clinic (CBOC) in Appleton, Wisconsin. Initial

Appeal File (IAF), Tab 4 at 15-16. The appellant’s spouse at the time was also an

agency employee at the CBOC. 2 IAF, Tab 18 at 7. On April 29, 2013, the

appellant was arrested and charged with multiple criminal offenses in connection

with his off-duty domestic abuse of his former spouse, including strangulation

and suffocation, intimidating a victim/use of attempted force, battery, and

disorderly conduct. IAF, Tab 4 at 93, Tab 18 at 7. The appellant pled guilty to

and was convicted of the felony charge of strangulation and suffocation. IAF,

Tab 4 at 93, Tab 13 at 13, Tab 18 at 7. The remaining charges were dismissed,

The appellant and his former spouse have since divorced. IAF, Tab 18 at 7.

but were read into the record and considered during the appellant’s sentencing.

IAF, Tab 4 at 93, Tab 13 at 14, Tab 18 at 7.

¶3 The appellant was sentenced to probation and 8 months of jail time with

1 month of jail time imposed and 7 months stayed. 3 IAF, Tab 13 at 11, Tab 18

at 7. The appellant’s sentence permitted work release, IAF, Tab 13 at 11, Tab 18

at 7, but on December 5, 2013, the agency denied his request to return to work

and informed him that it would consider him as being absent without leave while

he was serving his jail sentence, IAF, Tab 4 at 48, Tab 18 at 8.

¶4 Thereafter, the agency removed the appellant, effective April 21, 2014,

based on charges of absence without leave (AWOL) and conduct unbecoming a

Federal employee. IAF, Tab 4 at 21-23, 43-47. The AWOL charge arose from

the appellant’s absence from work during his jail sentence. Id. at 43-45. The

conduct unbecoming charge arose from the appellant’s domestic abuse of his

former spouse on April 29, 2013. Id. at 45-46. In addition to strangling and

suffocating his ex-wife, the agency alleged that the appellant hit her in the head,

kneed her in the back, bit her on the arm, and threatened to kill her if she called

the police. 4 Id.

¶5 The appellant filed a timely Board appeal challenging his removal and

raised affirmative defenses that the agency violated his due process rights and

committed harmful procedural error. IAF, Tab 1 at 1, 3, 5; Tab 18 at 8-12. At

the commencement of the appellant’s requested hearing, the agency withdrew the

However, after serving 2 days in jail, the appellant was transferred to serve the

remainder of his sentence under house arrest. IAF, Tab 18 at 8.

Although the agency alleged that the appellant threatened to kill his ex-wife, IAF,

Tab 4 at 46, the administrative judge properly found that, because the agency did not

charge the appellant with making a threat, it was not required to prove the elements of a

threat charge set forth in Metz v. Department of the Treasury, 780 F.2d 1001, 1004

(Fed. Cir. 1986). IAF, Tab 48, Initial Decision at 7 n.1; see Otero v. U.S. Postal

Service, 73 M.S.P.R. 198, 200, 204 (1997) (finding that an administrative judge erred in

requiring an agency to meet the burden of proof for a threat charge when it charged an

appellant with “improper conduct” based on threatening remarks).

AWOL charge. Hearing Compact Disc (HCD), Volume 1 (statement of agency

counsel); IAF, Tab 1 at 2.

¶6 Following the hearing, the administrative judge issued an initial decision

sustaining the appellant’s removal. IAF, Tab 48, Initial Decision (ID). She found

that the agency proved the charge of conduct unbecoming a Federal employee. 5

ID at 5-9. She further found that the agency established a nexus between the

appellant’s misconduct and the efficiency of the service. ID at 9 -13. She found

that the appellant failed to prove that the agency violated his due process rights,

ID at 13-14, or committed harmful procedural error, ID at 14-16. Finally, she

found that the penalty of removal was reasonable for the sustained charge of

conduct unbecoming a Federal employee. ID at 16-22.

¶7 The appellant has filed a petition for review of the initial decision, and the

agency has responded in opposition to the petition for review. Petition for

Review (PFR) File, Tabs 1-3. 6

DISCUSSION OF ARGUMENTS ON REVIEW

The agency established a nexus between the charge of conduct unbecoming a

Federal employee and the efficiency of the service.

¶8 On review, the appellant challenges the administrative judge’s finding that

the agency established a nexus between his off-duty misconduct and the

efficiency of the service. PFR File, Tab 1 at 4. He contends that his domestic

abuse of his former spouse “had nothing to do with” the fact that she was an

agency employee and that “any reasonable person knows that the[re] is a big

Specifically, the administrative judge found that the appellant was collaterally

estopped from relitigating the facts underlying his strangulation and suffocation

conviction before the Board, ID at 5-6, and that the agency proved the remaining

allegations in the charge and demonstrated that they constituted conduct unbecoming a

Federal employee, ID at 6-9.

On review, the appellant does not challenge the administrative judge’s findings that

the agency proved the charge of conduct unbecoming a Federal employee or that he

failed to prove that the agency violated his due process rights. PFR File, Tab 1. We

discern no basis to disturb these findings.

difference between what happens between a husband and a wife an d what happens

outside the home.” Id.

¶9 An agency may show a nexus between off-duty misconduct and the

efficiency of the service by three means: (1) a rebuttable presumption of nexus

that may arise in certain egregious circumstances based on the nature and gravity

of the misconduct; (2) a showing by preponderant evidence that the misconduct

affects the employee’s or his coworkers’ job performance, or management’s trust

and confidence in the employee’s job performance; and (3) a showing by

preponderant evidence that the misconduct interfered with or adversely affected

the agency’s mission. Kruger v. Department of Justice, 32 M.S.P.R. 71, 74

(1987). We agree with the administrative judge that the violent and

life-threatening nature of the appellant’s misconduct in strangling, suffocating,

hitting, kneeing, biting, and threatening to kill his ex-wife, an agency employee,

was so egregious that a rebuttable presumption of nexus applies. See ID at 11;

see also Hayes v. Department of the Navy, 727 F.2d 1535, 1536, 1539 (Fed. Cir.

1984) (sustaining the Board’s finding that a rebuttable presumption of nexus

applied when an employee committed off-duty assault and battery of a child);

Backus v. Office of Personnel Management, 22 M.S.P.R. 457, 459-60 (1984)

(finding that a rebuttable presumption of nexus applied when an employee shot,

but did not kill, his fiancée); Faint v. U.S. Postal Service, 22 M.S.P.R. 495, 497

(1984) (finding that a rebuttable presumption of nexus applied whe n an employee

committed off-duty assault with a deadly weapon), aff’d, 770 F.2d 179 (Fed. Cir.

1985) (Table).

¶10 The appellant may rebut the presumption of nexus by introducing evidence

showing an absence of adverse effect on the efficiency of the service, in which

case the agency then has the burden of proving nexus without reliance on this

presumption. Backus, 22 M.S.P.R. at 460. Here, the administrative judge

considered the appellant’s arguments that his immediate supervisors continued to

trust him, that his coworkers were purportedly unconcerned about his arrest, and

that he performed satisfactorily in his position for 7 months between his arrest

and his removal and concluded that these factors were insufficient to rebut the

presumption of nexus. ID at 11-13; see IAF, Tab 15 at 10, Tab 47 at 4, 6. We

agree. Among other things, the administrative judge correctly found that both the

proposing and deciding officials lost confidence in the appellant’s ability to

behave appropriately at work and that apprehension about the appellant returning

to work did not need to be shared by all coworkers to support a finding of nexus

based on the rebuttable presumption arising from egregious misconduct . ID

at 12; HCD, Volume 1 (testimony of the proposing official), Volume 3 (testimony

of the deciding official); see Backus, 22 M.S.P.R. at 460-61 (finding that an

agency established nexus based on an employee’s egregious misconduct whe n

only some of the individuals who worked with the employee were apprehensive

about his return to work).

¶11 On review, the appellant repeats several of the arguments that he raised

below, including his claims regarding his immediate supervisors and his 7 months

of satisfactory performance prior to his removal. PFR File, Tab 1 at 4-5, 7-9.

His repetition of these arguments constitutes mere disagreement with the

administrative judge’s well-reasoned findings, and does not provide a basis to

disturb the initial decision. See Yang v. U.S. Postal Service, 115 M.S.P.R. 112,

¶ 12 (2010) (finding that mere disagreement with the administrative judge ’s

findings is insufficient to disturb the initial decision); Crosby v. U.S. Postal

Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb an

administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions).

¶12 Finally, we agree with the administrative judge that, even if the rebuttable

presumption of nexus were not applicable, the agency established nexus on the

basis that: (1) the appellant’s misconduct eroded senior management’s trust and

confidence in his job performance; and (2) when, as here, the appellant’s former

spouse was also an agency employee stationed at the same facility as the

appellant, the appellant’s misconduct conflicted with the agency’s mission of

providing a safe environment to treat sick and injured veterans. See ID at 12-13;

see also Kruger, 32 M.S.P.R. at 75-76 (finding that an agency is not required to

demonstrate a specific impact on an employee’s job performance or service

efficiency to establish nexus when the employee’s misconduct conflicts with the

agency’s mission). In sum, we discern no basis to disturb the administrative

judge’s finding that the agency established a nexus between the appellant’s

sustained misconduct and the efficiency of the service.

The administrative judge correctly found that the appellant failed to prove his

affirmative defense of harmful procedural error.

¶13 On review, the appellant contests the administrative judge’s findin g that he

failed to prove his affirmative defense that the agency committed harmful

procedural error when an agency Veterans Justice Outreach (VJO) Specialist

failed to refer his criminal case to the Veterans’ Treatment Court for a diversion

program. PFR File, Tab 1 at 5-6, 10; see IAF, Tab 18 at 11-12. The

administrative judge correctly found that the appellant failed to identify any

statute, rule, or regulation requiring a VJO Specialist to make such a referral. See

ID at 16. Furthermore, the agency presented testimony from a Milwaukee

Veterans Affairs Healthcare System (VAHS) Program Manager, who explained

that VJO Specialists merely provide information about the Veterans’ Treatment

Court to veterans’ counsel in criminal matters and that VJO Specialists are not

expected to make referrals to the Veterans’ Treatment Court. 7 HCD, Volume 2

(testimony of the VAHS Program Manager).

¶14 Even assuming that the agency committed an error in failing to refer the

appellant’s criminal case to the Veterans’ Treatment Court, however, an agency

She further explained that the VJO Specialist in question was unable to provide VJO

services to the appellant due to a potential conflict of interest involving the appellant’s

ex-wife and that another VJO Specialist was assigned to the appellant. HCD, Volume 2

(testimony of the VAHS Program Manager).

error is harmful only when the record shows that the error was likely to have

caused the agency to reach a conclusion different from the one it would have

reached in the absence or cure of the error. Hope v. Department of the Army,

108 M.S.P.R. 6, ¶ 8 (2008). The appellant bears the burden of proving that the

error was harmful. Id.; 5 C.F.R. §§ 1201.4(r), 1201.56(c)(1). Here, the appellant

argued that, if he had been referred to the Veterans’ Treatment Court, he would

not have been convicted of a felony, and accordingly, the agency would not have

removed him. IAF, Tab 18 at 11. However, during the appellant’s criminal

proceedings, he attempted to withdraw his guilty plea, arguing that he should

have been referred to the Veterans’ Treatment Court prior to plea negotiations.

IAF, Tab 38 at 6-7. The State of Wisconsin responded that it would not have

agreed to defer the appellant’s prosecution if he had asked for a referral to the

Veterans’ Treatment Court, id. at 7, and the Outagamie County Circuit Court

denied the appellant’s motion to withdraw his plea, finding that he failed to show

that referral to the Veterans’ Treatment Court would have prevented his criminal

conviction, id. Based on this evidence, the administrative judge properly found

that the appellant failed to establish that the agency’s alleged error in not

referring his criminal case to the Veterans’ Treatment Court was likely to have

caused the agency to have reached a different conclusion in his removal action.

See ID at 15-16.

¶15 On review, the appellant contends that the administrative judge failed to

understand the role of the Veterans’ Treatment Court and the harm that resulted

from the agency’s failure to refer his criminal case there prior to plea

negotiations. PFR File, Tab 1 at 5-6. The initial decision reflects that the

administrative judge understood the appellant’s arguments regarding the

Veterans’ Treatment Court but nevertheless, correctly concluded that he failed to

prove his harmful procedural error claim. See ID at 14-16. We have considered

the appellant’s remaining arguments on review pertaining to his harmful

procedural error claim, including his allegation that the VJO Specialist made

misrepresentations to his former spouse regarding the Veterans’ Treatment Court,

and his assertions that the VJO Specialist neglected her duties and was

incompetent, see PFR File, Tab 1 at 5-6, and we find that they do not provide a

basis to disturb the initial decision.

We will not consider the appellant’s untimely raised claim that the agency

subjected him to double punishment for the same misconduct.

¶16 On review, the appellant argues that the agency improperly subjected him to

double punishment when it refused to allow him to return to work under the work

release provision of his sentence and subsequently removed him based on the

misconduct underlying his criminal charges and conviction. PFR File, Tab 1

at 6-8. He further contends that the administrative judge erred in failing to

address this claim in the initial decision. Id. at 7.

¶17 We find that the administrative judge did not err in failing to adjudicate the

appellant’s claim that he was subjected to double punishment. An appellant may

raise a claim or defense that was not included in the appeal at any time before the

end of the conference or conferences held to define the issues in the case but may

not raise a new claim or defense after that time, except for good cause shown.

5 C.F.R. § 1201.24(b); see Roof v. Department of the Air Force, 53 M.S.P.R. 653,

658 (1992). Here, prior to the prehearing conference, the appellant did not raise a

claim that he was subjected to double punishment. IAF, Tabs 1, 15. Moreover,

the January 21, 2015 order and summary of prehearing conference described each

of the claims and affirmative defenses raised by the appellant and did not include

a claim that the agency subjected him to double punishment. IAF, Tab 18. The

appellant did not object to the prehearing conference summary, although the order

and summary of prehearing conference advised him that he had the right to do so.

Id. at 14.

¶18 Furthermore, on review, the appellant has not attempted to explain his

failure to timely raise his claim that he was subjected to double punishment. PFR

File, Tab 1 at 6-8. The appellant argued he was subjected to double punishment

for the first time in his closing brief following the hearing. IAF, Tab 47 at 8-9.

However, he does not contend, either below or on review, that he became aware

of the factual basis for his claim of double punishment for the first time at or after

the hearing. Id.; PFR File, Tab 1 at 6-8. Indeed, it was apparent from the agency

file, submitted more than 15 months prior to the hearing, that the agency refused

to allow the appellant to return to work during his sentence and that it

subsequently removed him based on the conduct underlying his criminal charges

and conviction. IAF, Tab 4 at 21-23, 43-48. Accordingly, we find that the

appellant failed to demonstrate good cause for his failure to timely raise the claim

that he was subjected to double punishment, and that the administrative judge

properly did not address the claim in the initial decision. See Burge v.

Department of the Air Force, 82 M.S.P.R. 75, ¶ 7 n.2 (1999) (finding that an

administrative judge properly declined to address a claim raised by an appellant

when he failed to establish good cause for his failure to timely raise the claim

prior to the end of the conference to define the issues in the case). Finally, when,

as here, the appellant has not demonstrated good cause for his failure to timely

raise a claim below, we will not consider the appellant’s arguments regarding the

merits of that claim on review. See 5 C.F.R. § 1201.24(b) (providing that an

appellant may not raise a new claim or defense after the prehearing conference,

except for good cause shown).

The administrative judge correctly found that the penalty of removal was

reasonable.

¶19 As previously stated, the agency withdrew the AWOL charge at the

beginning of the hearing, and therefore, the Board did not sustain all of the

charges that formed the basis for the agency’s decision to remove the appellant .

See HCD, Volume 1 (statement of agency counsel). When the Board does not

sustain all of the charges, it will carefully consider whether the sustained charges

merit the penalty imposed by the agency. See Boo v. Department of Homeland

Security, 122 M.S.P.R. 100, ¶ 17 (2014). If the agency does not indicate that it

desires a lesser penalty to be imposed on fewer charges, the Board may mitigate

to the maximum reasonable penalty if a careful balancing of the mitigating factors

warrants, or the Board may impose the same penalty imposed by the agency based

on justification of that penalty as the maximum reasonable penalty after balancing

those factors. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999).

¶20 Here, the agency did not indicate that it would have imposed a lesser

penalty in the absence of the AWOL charge. To the contrary, the deciding

official testified that he would have removed the appellant based solely on the

charge of conduct unbecoming a Federal employee. HCD Volume 3 (testimony of

the deciding official). The administrative judge conducted a detailed analysis and

concluded that the deciding official considered the appropriate factors under

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

penalty of removal was reasonable. 8 ID at 16-22. We agree.

¶21 In evaluating whether a penalty is reasonable, the Board will consider, first

and foremost, the nature and seriousness of the misconduct. Neuman v. U.S.

Postal Service, 108 M.S.P.R. 200, ¶ 23 (2008). We agree with the deciding

official and the administrative judge that the appellant’s off-duty misconduct of

violence towards his ex-wife, an agency employee, which included strangling and

suffocating her, was extremely serious. See HCD, Volume 3 (testimony of the

deciding official); IAF, Tab 4 at 24-25; ID at 17.

¶22 We further agree with the administrative judge that, although the

appellant’s immediate supervisors did not believe that his removal was necessary,

In so finding, the administrative judge determined that the appellant failed to prove

his disparate penalties claim. ID at 19-20. Our decision in Singh v. U.S. Postal

Service, 2022 MSPB 15, ¶ 14, issued after the initial decision in this appeal, clarifies

that the relevant inquiry for assessing a claim of disparate penalties when weighing the

reasonableness of a penalty is whether the agency knowingly and unjustifiably treated

employees who engaged in the same or similar offenses differently. There is no

evidence in the record to indicate that the agency did so in this case. On review, the

appellant does not challenge the administrative judge’s finding regarding his disparate

penalties claim, PFR File, Tab 1, and we discern no basis to disturb it.

the fact that both the proposing and deciding officials lost confidence in the

appellant’s ability to refrain from violence in the workplace weighed in favor of

his removal. 9 See ID at 19; HCD, Volume 1 (testimony of the proposing official),

Volume 3 (testimony of the deciding official); see also Talavera v. Agency for

International Development, 104 M.S.P.R. 445, ¶ 12 (2007) (finding that an

agency’s loss of trust in an employee is a significant aggravating fa ctor). The

Board has found that it is appropriate it defer to a deciding official’s opinion over

that of an immediate supervisor, when as a headquarters official, a deciding

official has an arguably broader view of the effect of the employee ’s misconduct

upon the agency as a whole. Topper v. Department of Justice, 70 M.S.P.R. 69, 77

(1996); see also Ahr v. Department of Justice, 23 M.S.P.R. 238, 241 (1984)

(sustaining an appellant’s removal when another supervisory agency employee,

but not the appellant’s immediate supervisor, had lost trust and confidence in the

appellant’s ability to conduct himself appropriately). In addition, the

administrative judge properly considered the fact that the appellant’s immediate

supervisors had not reviewed the police report or other materials pertaining to the

April 29, 2013 incident and were not fully aware of the violent and severe nature

of the appellant’s misconduct. 10 See ID at 18-19; HCD Volume 3 (testimony of

the deciding official). We have considered the appellant’s numerous arguments

on review regarding the opinions of his immediate supervisors and find that they

On review, the appellant contends that the administrative judge mistakenly stated that

his immediate supervisors asserted that they had lost confidence in his ability to

perform his duties. PFR File, Tab 1 at 9. To the contrary, the admin istrative judge

specifically recognized that the appellant’s immediate supervisors had not lost

confidence in him. ID at 19.

The appellant’s argument on review that the proposing and deciding officials also did

not review the police report does not provide a basis to disturb the initial decision. PFR

File, Tab 1 at 8-9. Regardless of whether they actually read the police report, the

record reflects that the proposing and deciding official s were familiar with the details

contained in the report and the nature of the appellant’s misconduct. IAF, Tab 4

at 24-25.

do not provide a basis to disturb the initial decision. PFR File, Tab 1 at 4-5, 8-9;

see Yang, 115 M.S.P.R. 112, ¶ 12; Crosby, 74 M.S.P.R. at 106.

¶23 On review, the appellant also contends that the administrative judge and the

deciding official erred in finding that he had poor potential for rehabilitation .

PFR File, Tab 1 at 4, 9-10. We disagree. The administrative judge and deciding

official properly found that the appellant’s attempts to rationalize and minimize

his violent and abusive behavior reflected poor potential for rehabilitation. See

ID at 20-21; HCD, Volume 3 (testimony of the deciding official); see also

Neuman, 108 M.S.P.R. 200, ¶ 26 (finding that an appellant’s rationalizations and

lack of remorse indicated little potential for rehabilitation and were aggravating

factors). For example, inexplicably, the appellant attempted to justify his abuse

of his former spouse by claiming that it was instigated by an incident in which a

coworker attempted to sexually molest her. IAF, Tab 15 at 6, Tab 47 at 9-10. He

further argued that prior to the incident, his ex-wife “made intimidating jabs and

kicks” at him, yelled at him “for a number of minutes,” and claimed that she only

required “limited” medical care for the injuries that he caused. IAF, Tab 15 at 8,

12, Tab 47 at 9-10, 12. We have considered the appellant’s arguments on review

regarding his potential for rehabilitation, including but not limited to his

assertions that he completed a domestic violence program and that his former

spouse believes that he is making progress with his mental health, his claims

regarding his successful co-parenting relationship with his ex-wife, and his

detailed description of a recent incident in which he removed a dead mouse from

her house and find that they do not provide a basis to disturb the initial decision.

PFR File, Tab 1 at 4, 9-10.

¶24 The administrative judge also considered mitigating factors, including the

appellant’s assertion that he suffered from major depressive disorder, and his lack

of prior discipline during more than 2 years of Federal service. 11 ID at 21-22.

However, she properly concluded that they did not outweigh the significant

aggravating factors at issue here. ID at 21-22. In sum, we agree with the

administrative judge that the penalty of removal was reasonable for the

appellant’s sustained misconduct.

The appellant’s allegations that the administrative judge was biased and failed to

provide him with adequate guidance as a pro se litigant do not provide a basis to

disturb the initial decision.

¶25 On review, the appellant argues that the administrative judge was biased

against him because he chose to represent himself and because he asked witnesses

difficult questions at the hearing. PFR File, Tab 1 at 11. A claim of bias must be

raised as soon as practicable after a party has reason able cause to believe that

grounds exist for an administrative judge’s disqualification on such basis, and a

party cannot wait until after the adjudication is complete to object for the first

time. Gensburg v. Department of Veterans Affairs, 85 M.S.P.R. 198, ¶ 7 (2000);

see 5 C.F.R. § 1201.42(b). Thus, the appellant’s bias claim is untimely raised.

Moreover, even if we were to consider this claim, his conclusory allegations

would be insufficient to overcome the presumption of honesty and integrity that

accompanies administrative adjudicators. See Simpkins v. Office of Personnel

Management, 113 M.S.P.R. 411, ¶ 5 (2010) (finding that an appellant’s

conclusory allegations of bias were insufficient to overcome the presumption of

honesty and integrity that accompanies an administrative judge ); Oliver v.

Department of Transportation, 1 M.S.P.R. 382, 386 (1980) (finding that in

For the first time on review, the appellant asserts that he suffers from anxiety as well

as major depressive disorder. PFR File, Tab 1 at 9-10. The Board will not consider an

argument raised for the first time in a petition for review absent a showing that it is

based on new and material evidence not previously available despite the party’s due

diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The

appellant has not made such a showing here. Although he contends that he did not

realize that he should discuss his mental health because he was proceeding pro se,

PFR File, Tab 1 at 9, he raised arguments below regarding his major depressive

disorder, IAF, Tab 15 at 7, 10.

making a claim of bias or prejudice against an administrative judge, a party must

overcome the presumption of honesty and integrity that accompani es

administrative adjudicators).

¶26 We also have considered the appellant’s argument that the administrative

judge erred in failing to provide him with sufficient guidance and assistance as a

pro se litigant and find it unpersuasive. PFR File, Tab 1 at 9. Although

administrative judges are obligated to provide more guidance to pro se appellants

and interpret their arguments in the most favorable light, see Miles v. Department

of Veterans Affairs, 84 M.S.P.R. 418, ¶ 10 (1999), the affirmative responsibility

to present relevant evidence is fundamentally that of the parties, Richardson v.

Department of Justice, 11 M.S.P.R. 186, 195 (1982). Here, the administrative

judge advised the appellant regarding the relevant issues and burdens of proof ,

and the appellant had the opportunity to present evidence at the hearing. IAF,

Tab 18 at 1-12. Under the circumstances, we discern no error in the level of

guidance that the administrative judge provided to the appellant. See Smith v.

U.S. Postal Service, 81 M.S.P.R. 443, ¶ 8 (1999) (finding that, although an

administrative judge should provide appropriate guidance to a pro se appellant ,

she is not to be an adversary or advocate in doing so).

¶27 In conclusion, for this reason and the reasons discussed above, we find that

the appellant has not provided a reason to disturb the initial decision sustaining

his removal.

NOTICE OF APPEAL RIGHTS 12

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

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

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

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

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a 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 tha t 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 resp ective

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 Employm ent

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. 13 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).

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