Opinion

Richard Hornsby v. Federal Housing Finance Agency

Court: Merit Systems Protection Board
Filed: Apr 28, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

finding that the Board must defer to an administrative judge’s demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly discussed”

How later courts described this case

finding that the Board must defer to an administrative judge’s demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly discussed”
affirming the removal of a supervisory correctional officer charged with making disparaging remarks to subordinate employees regarding the associate warden
holding that when more than one 23 specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICHARD HORNSBY, DOCKET NUMBER

Appellant, DC-0752-15-0576-I-2

FEDERAL HOUSING FINANCE DATE: April 28, 2022

AGENCY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David H. Shapiro, Esquire, Washington, D.C., for the appellant.

Debra L. Roth, and Christopher J. Keeven, Washington, D.C., for

the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

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

which reversed the appellant’s removal on a charge of conduct unbecoming a

Federal manager. For the reasons discussed below, we GRANT the agency’s

petition for review, REVERSE the administrative judge’s finding that the agency

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

failed to prove the charge, and AFFIRM the administrative judge’s finding that

the appellant failed to prove his affirmative defense . The appellant’s removal

is SUSTAINED.

BACKGROUND

¶2 Effective December 5, 2011, the agency appointed the appellant to the

Chief Operating Officer (COO) position. Hornsby v. Federal Housing Finance

Authority, MSPB Docket No. DC-0752-15-0576-I-1, Initial Appeal File (IAF),

Tab 6 at 89. The appellant reported directly to the agency’s Acting Director,

E.D., until January 6, 2014, when the agency appointed another individual as

Director. Id. at 55. Thereafter, the appellant reported directly to the Director,

and E.D. returned to his prior position as Senior Deputy Director for the agency’s

Division of Housing, Mission, and Goals until April 30, 2014, when he retired

from Federal service. IAF, Tab 28 at 48; Hornsby v. Federal Housing Finance

Authority, MSPB Docket No. DC-0752-15-0576-I-2, Appeal File (I-2 AF),

Hearing Transcript, Day 1 (HT1) at 155-56, 173, 228, 272 (testimony of E.D.).

¶3 Although he no longer supervised the appellant once the Director took

office, E.D. was responsible for issuing the appellant’s 2013 performance

evaluation because he had been the appellant’s immediate supervisor for the 2013

rating period. HT1 at 173-74 (testimony of E.D.); Hearing Transcript, Day 2

(HT2) at 203-04 (testimony of the Director). In March 2014, E.D. gave the

appellant a performance rating for 2013 of “Fully Successful,” which precluded

him from receiving an executive bonus. 2 IAF, Tab 6 at 74-88; HT1 at 176-77,

199 (testimony of E.D.).

¶4 As COO, the appellant was the immediate supervisor of several agency

office directors, including the Director of the Office of Human Resource

Management (HR). IAF, Tab 5 at 93. On April 28, 2014, the HR Director

notified the agency’s Office of General Counsel (OGC) that the appellant had

The appellant’s performance rating for 2012 was “Outstanding.” IAF, Tab 6 at 92-97.

made statements to him earlier in the month indicating that the appellant might

harm E.D. and commit suicide. HT1 at 423-24 (testimony of the HR Director).

Based on these alleged statements, the agency removed the appellant from the

workplace on April 28, 2014, and placed him on administrative leave. IAF, Tab 5

at 88. The appellant was arrested on April 30, 2014, and charged with one felony

count of threatening to injure a person. Id. The charge was subsequently reduced

to two misdemeanor counts of attempted threats to do bodily harm. Id. On

November 20, 2014, the appellant was acquitted of the criminal charges. IAF,

Tab 25 at 20, 29.

¶5 In the meantime, the agency’s Office of Inspector General (OIG)

investigated the appellant’s alleged statements about harming E.D., as well as

other complaints it had received regarding the appellant’s conduct, including

allegations that he had interfered with the agency’s equal employment

opportunity (EEO) process. IAF, Tab 5 at 447-52. 3 In July 2014, the agency’s

Acting Inspector General issued a memorandum to the Director detailing the

results of OIG’s investigation. Id. at 447-49. On October 6, 2014, the Director

issued a notice proposing to suspend the appellant indefinitely. Id. at 88.

¶6 Following the appellant’s acquittal, the Director asked OGC to provide him

“all information that was available” about the appellant so that he could decide

whether the appellant should be allowed to return to work. HT2 at 236

(testimony of the Director). After receiving this information, the Director issued

a December 19, 2014 notice rescinding the proposed indefinite suspension and

proposing to remove the appellant based on a charge of conduct unbecoming a

Federal manager. IAF, Tab 5 at 88-96. The charge was supported by

18 specifications. Id. at 89-92.

As part of its file, the agency submitted three pages of a five-page July 23, 2014

memorandum from the Deputy Inspector General for Investigation to the Acting

Inspector General regarding the appellant’s alleged interference in the EEO process and

retaliation. IAF, Tab 5 at 450-52. Due to an apparent error, the agency omitted pages 2

and 4 of the memorandum.

¶7 The appellant provided oral and written responses to the proposed removal.

IAF, Tab 5 at 38-87. By letter dated March 19, 2015, the Director 4 sustained

all of the specifications and the agency removed the appellant effective

March 21, 2015. Id. at 22, 27-33.

¶8 The appellant filed a Board appeal challenging his removal and raising

an affirmative defense of retaliation for his prior EEO activity. IAF, Tab 1 at 4.

In support of his affirmative defense, the appellant alleged retaliation for filing

an EEO complaint and for participating in the settlement of an HR employee’s

EEO complaint in his capacity as the agency’s EEO settlement officer.

IAF, Tabs 17, 19. The appellant’s initial appeal was dismissed without prejudice

to refiling and later, automatically refiled. I-2 AF, Tabs 1-2.

¶9 Following a 5-day hearing, the administrative judge issued an initial

decision that reversed the appellant’s removal, finding that the agency failed to

prove any of the specifications supporting the charge. I-2 AF, Tab 17, Initial

Decision (ID) at 1, 10, 12, 16. The administrative judge also found that the

appellant failed to prove his affirmative defense. ID at 16-17. Because the

administrative judge reversed the removal action, she ordered the agency to

cancel the removal and retroactively restore the appellant with back pay plus

interest. ID at 17-18. The initial decision did not address the issue of interim

relief. See 5 C.F.R. § 1201.111(b)(4) (stating that, if the appellant is the

prevailing party, the initial decision shall contain a statement as to whether

interim relief is provided).

¶10 The agency has filed a petition for review, the appellant has filed a response

to the petition for review, and the agency has filed a reply to the appellant’s

response. 5 Petition for Review (PFR) File, Tabs 5, 12-13. The appellant also has

The Director was both the proposing and the deciding offici al. IAF, Tab 5 at 33, 96.

Neither of the parties has challenged the administrative judge’s finding that the

appellant failed to prove his affirmative defense of EEO reprisal, and we discern no

reason to disturb this finding.

filed a request for an order of interim relief, and the agency has filed a response

in opposition to the request. PFR File, Tabs 7, 11.

ANALYSIS

The appellant’s request for interim relief

¶11 Under 5 U.S.C. § 7701(b)(2), if the appellant is the prevailing party, the

initial decision will provide appropriate interim relief to the appellant effective

upon the date of the initial decision and remaining in effect until the date of the

The Age Discrimination in Employment Act states that “personnel actions . . . shall be

made free from any discrimination based on age.” 29 U.S.C. § 633a(a). Similarly,

title VII requires that such actions “shall be made free from any discrimination based on

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). In Savage v.

Department of the Army, 122 M.S.P.R. 612, ¶¶ 48-50 (2015), clarified on other grounds

by Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 30-31 (2016), the

Board adopted the analytical framework of Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977), for analyzing claims arising under title VII.

The Board in Savage held that it first inquires whether the appellant has shown by

preponderant evidence that the prohibited consideration was a motivating factor in the

contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 51. Such a showing is

sufficient to establish that the agency violated title VII. Id. If the appellant meets her

burden, the Board then inquires whether the agency has sho wn by preponderant

evidence that it still would have taken the contested action in the absence of the

discriminatory or retaliatory motive. Id. If the agency makes that showing, its title VII

violation will not require reversal of the action. Id.

After Savage was decided, the Supreme Court interpreted the language in 29 U.S.C.

§ 633a(a) in Babb v. Wilkie, 589 U.S. ___, 140 S. Ct. 1168 (2020). The Court held that

to obtain “injunctive or other forward-looking relief,” the plaintiff must show that age

discrimination “play[ed] any part in the wa y a decision [was] made.” Babb, ___ U.S.

at ___, ___, 140 S. Ct. at 1173-74, 1177-78. However, a plaintiff “must show that age

discrimination was a but-for cause of the employment outcome” to obtain

“reinstatement, backpay, . . . or other forms of relief related to the end result of an

employment decision.” ___ U.S. at ___, 140 S. Ct. at 1177-78. Thus, under both

Savage and Babb, some relief is available if the prohibited consideration was a

motivating factor in the challenged personnel action, but full relief is available only if

the prohibited consideration was a but-for cause of the action. Although Savage and

Babb appear to diverge on the question of which party has the burd en to prove or

disprove but-for causation, we need not decide in this case whether the analytical

framework applied in Savage must be revised in light of Babb. Because the appellant

here failed to prove his initial burden that a prohibited factor played any part in the

agency’s decision, we do not reach the question of whether EEO reprisal was a but-for

cause of that decision.

final order of the Board on any petition for review unless, among other things, the

administrative judge determines that granting interim relief is not appropriate.

5 C.F.R. § 1201.111(c)(1). The appellant asserts on review that, because he is the

prevailing party in this appeal and there has been no determination that granting

interim relief would be inappropriate, he is entitled to interim relief. PFR File,

Tab 7 at 5. He further asserts that, pursuant to 5 U.S.C. § 7701(b)(2), he is

entitled to the relief that the agency was ordered to provide him in the initial

decision, i.e., cancellation of his removal and restoration to his position effective

the date of his removal. Id.; ID at 17.

¶12 Contrary to the appellant’s contention, 5 U.S.C. § 7701(b)(2)(A) and the

Board’s regulations governing interim relief provide that the effective date of

such relief is the date of the initial decision, not the date of the adverse action.

See 5 C.F.R. §§ 1201.111(b)(4), (c)(1)-(2). In any event, the appellant’s

arguments regarding interim relief are now moot because interim relief is in

effect only pending the disposition of a petition for review. See 5 U.S.C.

§ 7701(b)(2)(A); Garcia v. Department of State, 106 M.S.P.R. 583, ¶ 7 (2007).

Accordingly, we deny the appellant’s request for interim relief. 6

The charge

¶13 On review, the agency challenges the administrative judge’s findings that it

did not prove any of the specifications supporting the charge, and it asserts that it

proved every specification. PFR File, Tab 5. A charge of conduct unbecoming

As a part of the initial decision, an interim relief order is subject to challenge in a

petition for review or cross petition for review. Merino v. Department of Justice,

94 M.S.P.R. 632, ¶ 6 (2003); Brown v. U.S. Postal Service, 54 M.S.P.R. 275, 277

(1991). Because the appellant did not file a petition for review or cross petition for

review of the initial decision, we find that his failure to do so is an additional basis for

denying his request for interim relief. See Thompson v. Department of the Air Force,

104 M.S.P.R. 529, ¶ 7 (2007). Even if we were to construe the request as a cross

petition for review, the administrative judge’s failure to address interim relief in the

initial decision was not reversible error because we find that the appellant is not entitled

to any relief in this case. See Marshall-Carter v. Department of Veterans Affairs,

94 M.S.P.R. 518, ¶ 14 n.2 (2003), aff’d, 122 F. App’x 513 (Fed. Cir. 2005).

has no specific elements of proof; the agency establishes the charge by proving

the appellant committed the acts alleged under this broad label. See Canada v.

Department of Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010). The agency

also must prove that the conduct was unattractive, unsuitable, or detracted from

the appellant’s character or reputation. Miles v. Department of the Army,

55 M.S.P.R. 633, 637 (1992).

¶14 For ease of discussion, we have divided the specifications into two groups

based on the administrative judge’s reason for finding that the agency failed to

prove the specification. The first group consists of specifications 5-11 and 18.

The administrative judge found that the appellant engaged in the conduct

described in these specifications; however, it was not conduct unbecoming a

Federal manager. ID at 14-16. As for the second group, i.e., specifications 1-4

and 12-17, the administrative judge found that the agency failed to prove that the

conduct described in these specifications occurred. 7 ID at 7-10, 12-14. We first

consider specifications 5-11 and 18.

Specifications 5 and 6

¶15 Specifications 5 and 6 involve comments that the appellant made about EEO

complaints during meetings with various agency officials in 2012. IAF, Tab 5

at 90. In specification 6, the agency alleged that on September 7, 2012, the

appellant told a group of agency employees—including the EEO Director, the HR

Director, the HR Deputy Director, and agency attorneys—that employees

should not be allowed to make anonymous EEO complaints and that EEO

complainants should have more “skin in the game.” Id. Yet notes from the

meeting appear to show that the appellant’s remarks followed the EEO Director

describing in the meeting how resolving EEO complaints is more difficult when

Regarding specification 12, which involved the appellant’s alleged threats to

outsource the agency’s HR function, the administrative judge further found that, even if

the appellant had committed the specified conduct, it would not constitute conduct

unbecoming a Federal manager. ID at 13 n.14.

the complainants are anonymous. IAF, Tab 28 at 87. Thus, the appellant sharing

his opinion on this matter does not necessarily seem out of place.

In specification 5, the agency alleged that in late August or early September of

2012, the appellant told the agency’s EEO and Diversity Director and an EEO

Counselor that he did not believe any of the complaints about the HR Deputy

Director, and that if there were any more complaints about her, there would be

“serious consequences,” or words to that effect. Id. This allegation is in fact

quite troubling, as such a statement expresses retaliatory intent and could clearly

have a chilling effect in the agency. Nevertheless, as the administrative judge

noted of both specifications, the agency failed to impose discipline on the

appellant when the remarks were made in 2012, instead merely taking the

remedial step of advising the appellant of the legal and policy importance of

allowing employees to file anonymous internal complaints. ID at 14. Given

these circumstances, we find no reason to disturb the administrative judge’s

findings that the agency failed to prove specifications 5 and 6.

Specification 7

¶16 In specification 7, the agency alleged that, during an April 22, 2013 meeting

with a Senior Economist who had sent the appellant an email seeking clarification

about pay raises, the appellant held up a copy of the email and said, “[L]ooking at

this email . . . I found it [expletive] offensive.” IAF, Tab 5 at 90, Tab 6 at 63-64.

The agency further stated that when the Senior Economist responded by saying

that he had to leave because the appellant had just cursed at him, the appellant

apologized, and the employee stayed. IAF, Tab 5 at 90.

¶17 In finding that the agency failed to prove this specification, the

administrative judge reasoned as follows: “Most adults curse at least

occasionally and [F]ederal managers are adults.” ID at 15. The administrative

judge found that “a single instance of uttering the word ‘[expletive]’ in this

context, especially if one apologizes afterward, is not conduct unbecoming a

[F]ederal manager.” Id.

¶18 Based on our review of the record, we find that the behavior described in

specification 7 is conduct unbecoming a Federal manager. The Board has

frequently held that rude, discourteous, and unprofessional behavior in the

workplace is outside the accepted standards of conduct reasonably expected by

agencies and can be the subject of discipline. See Holland v. Department of

Defense, 83 M.S.P.R. 317, ¶¶ 10-12 (1999) (sustaining a removal for rude and

discourteous behavior); Wilson v. Department of Justice, 68 M.S.P.R. 303, 309-10

(1995) (sustaining a removal for disrespectful conduct and the use of insulting,

abusive language). Although an employee may be allowed more leeway with

disrespectful conduct in “certain emotional, confrontational contexts,” the

conduct at issue in this specification occurred in a normal employment setting

where the appellant should have expected normal standards of conduct to appl y.

See Hamilton v. Department of Veterans Affairs, 115 M.S.P.R. 673, ¶¶ 11, 13

(2011). Moreover, the Board has held that, in a conduct unbecoming charge, an

agency can hold a supervisor to a higher standard of behavior than other

employees. See Ray v. Department of the Army, 97 M.S.P.R. 101, ¶ 58 (2004),

aff’d, 176 F. App’x 110 (Fed. Cir. 2006); Special Counsel v. Zimmerman,

36 M.S.P.R. 274, 293 (1988) (stating that, because the appellant was a supervisor,

he is held to a higher standard of conduct than subordinate employee s and should

set an example for other employees to follow). Accordingly, we find that the

agency proved specification 7 of the charge.

Specification 8

¶19 In specification 8, the agency alleged that, on several occasions, the

appellant made remarks about specific employees in inappropriate settings and/or

in the presence of employees who should not have heard these comments. IAF,

Tab 5 at 90-91. This specification consists of three allegations: (1) during a

November 13, 2013 meeting with employees from various offices, including

Facilities Operations and OGC, the appellant stated in front of everyone in

attendance that a specific Senior Facilities Management Specialist (FMS) should

be put on a performance improvement plan (PIP); (2) during a March 26, 2014

meeting with the Manager of Contracting Operations (MCO), the appellant made

a comment about a specific Senior Management Analyst who had filed an EEO

complaint against the agency, stating something to the effect that the employee,

who did not work in Contracting Operations, had a “situation that was bringing

outside people into the agency”; and (3) on other occasions, the appellant made

remarks in front of the MCO about the performance of employees that she did not

supervise, such as words to the effect that, “you can be sure this” 8 will negatively

“affect [the Chief Information Officer’s] rating.” 9 Id. (brackets as in

the original).

¶20 The administrative judge found that “while criticizing one employee in

front of others is not a management best practice, under the circumstances

described in the record it is also not conduct unbecoming a [F]ederal manager.”

ID at 15. The administrative judge does not identify the basis for her conclusion

that the appellant’s criticism of specific employees in front of other employees

was not conduct unbecoming. ID at 15; see Spithaler v. Office of Personnel

Management, 1 M.S.P.R. 587, 589 (1980) (stating that an initial decision must

identify all material issues of fact and law, summarize the e vidence, resolve

issues of credibility, and include the administrative judge’s conclusions of law

and his legal reasoning, as well as the authorities on which that reasoning rests).

Consequently, to determine whether the agency proved specification 8, we have

considered the context in which the appellant made the statements at issue in

this specification.

The record shows that the appellant was referring to the allegations in the MCO’s

grievance against the agency’s Chief Information Officer (CIO), who reported directly

to the appellant. Hearing Transcript, Day 4 (HT4) at 265 (testimony of the appellant).

In her grievance, the MCO claimed that the CIO and some members of his staff had

created a hostile work environment. Hearing Transcript, Day 3 (HT3) at 250 (testimony

of the MCO).

The proposal notice and decision letter incorrectly identify the CIO as the “Chief

Operating Officer.” IAF, Tab 5 at 30, 91.

¶21 Based on our review of the record, we find that the appellant did not engage

in conduct unbecoming either by stating that the Senior FMS should be put on a

PIP or by telling the MCO that the allegations in her grievance against the CIO

would be reflected in his performance evaluation. During his testimony, the

appellant explained that he made these statements while discussing the MCO’s

allegations against the Senior FMS and the CIO. Specifically, the appellant

testified that, during the November 13, 2013 meeting, the MCO alleged that the

Senior FMS had communicated with a bidder during a period when he was not

allowed to do so, and, in response, he stated that if this allegation were true, then

the Senior FMS should be held accountable and placed on a PIP. Hearing

Transcript, Day 4 (HT4) at 259, 261 (testimony of the appellant). The appellant

similarly testified that, while discussing the MCO’s grievance against the CIO, he

told the MCO that the allegations in her grievance, if true, would negatively

affect the CIO’s performance evaluation. Id. at 265. Thus, the appellant made

these statements to explain how the agency would address the MCO’s allegations

against other employees if they were proven. Given these circumstances, we find

that these statements were not improper.

¶22 We also find, however, that the appellant engaged in unbecoming conduct

during his March 26, 2014 meeting with the MCO by telling her that a specific

employee had filed an EEO complaint. IAF, Tab 6 at 69. The record indicates

that the appellant made this statement during a discussion about outsourcing

information technology services to illustrate that one advantage of outsourcing is

that the agency does not have to deal with personnel matters involving services

that have been outsourced. IAF, Tab 5 at 101-02, Tab 6 at 69; Hearing

Transcript, Day 3 (HT3) at 244-45, 285-86 (testimony of the MCO). 10 The

appellant clearly could have made the same point without revealing the name of

The appellant testified that he did not remember making any statements about the

EEO complainant to the MCO, but conceded that “it may have happened.” HT4

at 263-64 (testimony of the appellant).

an EEO complainant. Informing the MCO that a specific employee had filed an

EEO complaint demonstrates poor judgment and is clearly unsuitable, particularly

given the appellant’s position as COO. Accordingly, we find that the agency

proved this part of specification 8. See Green v. Department of the Navy,

61 M.S.P.R. 626, 633 n.10 (explaining that portions of a specification that

constitute individual allegations of misconduct under a charge may be

independently sustained), aff’d, 36 F.3d 1116 (Fed. Cir. 1994) (Table).

Specification 9

¶23 In specification 9, the agency alleged that, during a meeting with E.D. in

late November 2013, the appellant became agitated when E.D. questioned him.

IAF, Tab 5 at 91, Tab 22 at 24. The administrative judge found, and we agree,

that “becoming agitated” is not conduct unbecoming a Federal manager. ID at 15.

Specification 10

¶24 In specification 10, the agency asserted that, during a February 20, 2014

meeting with several employees about the National Mortgage Database (NMD), 11

the appellant placed his hand over the NMD Project Director’s mouth to prevent

him from making further comments. IAF, Tab 5 at 91. In addressing this

specification, the administrative judge noted that neither the appellant nor the

Project Director remembered the appellant engaging in such conduct; however, it

“made a big impression” on the lead counsel for the NMD project. ID at 15

(citing Hearing Compact Disc (CD) (testimony of the appellant, the Project

Director, and the lead counsel)); HT2 at 332-35 (testimony of the lead counsel);

HT3 at 359 (testimony of the Project Director); HT4 at 273-74 (testimony of the

appellant). The administrative judge concluded that the alleged conduct

The NMD is a resource that contains information about mortgages throughout the

United States. HT3 at 245-48 (testimony of the NMD Project Director). The record

indicates that about 20 people attended the meeting, including the General Counsel and

the lead counsel for the NMD project. IAF, Tab 5 at 98; HT2 at 323, 330-31 (testimony

of the lead counsel); HT3 at 380 (testimony of the Project Director).

occurred; however, it probably was not a “big deal” to the Project Director, given

his testimony that he “tends to need to be silenced” and that the appellant was his

friend. ID at 15; HT3 at 358 (testimony of the Project Director). The

administrative judge found that, under these circumstances, the appellant’s

conduct was not unbecoming. ID at 15.

¶25 Although the Project Director was not offended by the appellant’s actions,

we find that it was improper and unsuitable for the appellant—who was the

Project Director’s immediate supervisor as well as COO—to place his hands over

the Project Director’s mouth to prevent him from speaking during a meeting.

HT3 at 344, 359-60 (testimony of the Project Director). Therefore, we find that

the agency proved this specification.

Specification 11

¶26 Specification 11 involves a statement that the appellant made in late

February or early March of 2014, to the NMD’s lead counsel and another

attorney, both of whom had drafted a memorandum to the Director addressing the

agency’s potential liability for data breaches of the NMD. IAF, Tab 5 at 91, 98

(written declaration of the lead counsel). The agency alleged that the appellant

engaged in conduct unbecoming by telling the attorneys that issuing the

memorandum might be a “career ender.” Id. at 91. The agency further stated that

the lead counsel interpreted the appellant’s statement as referring to ending the

careers of both attorneys, who then removed the information at issue from the

memorandum. Id. at 91, 98. The appellant testified that he was referring to his

own career when he used the term “career ender.” Id.; HT4 at 277-79 (testimony

of the appellant).

¶27 The administrative judge found that telling a staff attorney that the contents

of a memorandum could end a career is not conduct unbecoming a Federal

manager. She did not provide a basis for her conclusion. ID at 15-16. The

agency challenges this finding on review, arguing that the attorneys “reasonably

understood” the appellant’s statement as a threat to their careers and felt

compelled to modify the memorandum to “diminish their analysis” of the risks

associated with the NMD as a direct result of this “intimidating” statement . PFR

File, Tab 5 at 38-39.

¶28 Regardless of whose career might be allegedly ended by the inclusion in the

memorandum of the information in question, it is understandable that the

attorneys felt intimidated into removing the information. The record indicates

that the attorneys had already revised the memorandum several times, but that the

appellant continued to be unhappy with the memorandum includin g information

on potential agency liability. Given the appellant’s inappropriate behavior on

multiple occasions and the alleged threatening statements the appellant made in

2012 regarding EEO complaints, we find believable the attorneys’ allegations

that, by his “career ender” remark, the appellant was intimidating them regarding

their careers and not his own. We believe it is reasonable for an agency to

conclude that “an atmosphere of intimidation is not conducive to the productive

flow of ideas and communication that is vital” to the agency, IAF, Tab 5 at 94,

particularly as it relates to information about potential agency liability. Thus, we

find that the conduct specified in charge 11 constituted conduct unbecoming a

Federal manager and that the agency proved this specification.

Specification 18

¶29 In specification 18, the agency alleged that, after he became aware of his

“Fully Successful” performance rating, the appellant asked the HR Director to

negotiate with E.D. on his behalf for a higher rating so that he would receive a

bonus. IAF, Tab 5 at 92. The agency further alleged that the appellant sent the

HR Director the following email on April 24, 2014:

Please make sure [E.D.] does not give me a partial bonus. I want the

goose egg that reflects the unfair rating he gave me. If he suggests a

5 or 10 to further insult me I want it stopped before he leaves. I

want [the bonus] 0 to reflect what he told me to my face. If he does

otherwise I will seek legal counsel.

He continues not to resolve my [job performance plan] escalation!

He has been nonresponsive. There is no excuse for his behaviour.

Id.; IAF, Tab 6 at 59.

¶30 The administrative judge found that, contrary to the specification, the HR

Director testified that he volunteered to intervene on the appellant’s behalf with

E.D. ID at 16 n.16 (citing Hearing CD). The administrative judge further found

that “nothing about the contents of the email was unattractive or unsuitable,

detracted from his character or reputation, or created an unfavorable impression. ”

ID at 16.

¶31 The record does not support the administrative judge’s finding that the HR

Director testified that he volunteered to negotiate with E.D. for a better

performance rating for the appellant. 12 During the Board hearing and the criminal

trial in this matter, as well as in his written statement dated April 28, 2014, and

his interview with OIG agents the same day, the HR Director consistently stated

that the appellant had asked him to negotiate with E.D. to improve the appellant’s

performance rating. IAF, Tab 5 at 316-17 (criminal trial testimony of the HR

Director), Tab 6 at 33, 52; HT1 at 356-58; HT2 at 148-49, 151-52 (testimony of

the HR Director). Moreover, during the appellant’s criminal trial, the HR

Director responded as follows when asked whether he volunteered to negotiate

with E.D. to improve the appellant’s performance rating: “That’s not an

assignment I would volunteer for.” IAF, Tab 5 at 317 (criminal trial testimony of

the HR Director). This statement is consistent with the HR Director’s testimony

at the hearing that he felt awkward asking E.D. to improve the appellant’s

performance rating. HT2 at 148-49 (testimony of the HR Director). Thus, the

record shows that the appellant asked the HR Director to intervene with E.D. to

improve his performance rating.

This finding also appears to contradict the administrative judge’s determination that

the appellant “entreated [the HR director] to intervene” as part of his “campaign to

change [E.D.’s] mind about the rating.” ID at 3 (citing IAF, Tab 6 at 59, 73; and

testimony of the appellant, E.D., and the HR Director).

¶32 We find that it was improper for the appellant to do so. As previously

noted, the appellant was the HR Director’s immediate supervisor. Thus, in

making this request, the appellant was placing the HR Director in the untenable

position of either refusing his supervisor’s request or negotiating with his former

second-level supervisor for a better performance rating for his supervisor.

Further, while the HR Director’s office was responsible for processing

performance ratings and bonuses, HT2 at 166-67 (testimony of the HR Director),

there is no evidence that HR Director’s duties vis-à-vis performance ratings

entailed negotiating better ratings for agency employees. Given these

circumstances, we find that it was clearly unsuitable for the appellant to ask the

HR Director to undertake such a negotiation on his behalf.

¶33 We also disagree with the administrative judge’s finding that there was

nothing unsuitable about the appellant’s email to the HR Director. ID at 15. In

the email, the appellant made disparaging remarks about E.D. to his subordinate,

stating that E.D.’s behavior was inexcusable. IAF, Tab 6 at 59. The Board and

our reviewing court have held that making disparaging comments about one’s

superior to a subordinate employee constitutes conduct unbecoming a Federal

employee. See Guise v. Department of Justice, 330 F.3d 1376, 1380 (Fed. Cir.

2003) (affirming the removal of a supervisory correctional officer charged with

making disparaging remarks to subordinate employees regarding the associate

warden); Ray, 97 M.S.P.R. 101, ¶ 58 (finding that a supervisor’s disparaging

comments about agency officials, including his superior, which were directed to a

subordinate agency employee with no apparent need to know the appellant’s

views regarding those officials, constituted conduct unbecoming a Federal

employee). We therefore find that the agency proved specification 18.

Specifications 1-4 and 12-17

¶34 We next consider the second group of specifications. S pecifications 1-4

involve the appellant’s alleged statements to the HR Director about E.D., which

the HR Director reported to OGC on April 28, 2014. IAF, Tab 5 at 89-90, Tab 6

at 34. In these specifications, the agency alleged as follows:

(1) On April 3, 2014, the appellant said to the HR Director, “I can

understand how someone could go postal, if I decide to take myself

out I will walk into [E.D.’s] office and blow his brains out and then

kill myself.”

(2) On April 3, 2014, the appellant also told the HR Director that he

might not “blow [E.D.’s] brains out” but would shoot him in the

kneecap and say, “don’t [expletive] with me.”

(3) On April 24, 2014, the appellant told the HR Director that E.D.

had done nothing about the appellant’s performance rating and made

the following statement in reference to E.D: “[T]hat son of a

[expletive] is not in his office today but if he was [I] would go there

and rip him limb by limb from his office.”

(4) On April 24, 2014, the appellant indicated to the HR Director

that he would make a scene at E.D.’s retirement party and tell

everyone the kind of person that E.D. really was, but that he

would not physically hurt E.D. at the party.

IAF, Tab 5 at 89-90.

¶35 In specifications 12-17, the agency alleged as follows:

(12) On several occasions, when the appellant could not hire

someone he wanted or an HR employee would complain to the

Inspector General or E.D. about the HR Deputy Director, he told the

HR Director that he would outsource the HR function.

(13) When the MCO complained to the appellant about outsourcing

contract services involving information technology to the

Department of the Interior’s Business Center, the appellant

frequently told the HR Director that he would outsource the MCO’s

office if she did not stop complaining.

(14) On April 3, 2014, the appellant told the HR Director that he

wanted an HR employee fired because the appellant saw her having

breakfast with E.D., although he had previously spoken to the HR

Director about converting that employee to a permanent appointment

because of her success with the agency’s recruiting program.

(15) Between April 8 and 24, 2014, the appellant told the HR

Director, “I can’t wait until the 30th when the Pope [referring to

E.D.] leaves the building.”

(16) The appellant lost his composure during an April 22, 2014

meeting with various agency officials and expressed his desire to fire

anyone who had complained about him.

(17) The appellant repeatedly expressed his hatred of E.D. to the HR

Director and, on multiple occasions, including April 22, 2014, told

the HR Director in a very serious tone that he wanted to jump out o f

his window or blow his brains out.

Id. at 91-92.

¶36 In the initial decision, the administrative judge noted that the appellant and

the HR Director provided conflicting testimony regarding wh ether the appellant

engaged in the conduct described in these specifications. ID at 7-8, 12-14. She

also noted that the HR Director provided the only evidence in support of several

specifications, including specifications 1-4, which were based on alleged

conversations during which only the appellant and the HR Director were present.

Id. at 8, 14. Citing the Board’s decision in Hillen v. Department of the Army,

35 M.S.P.R. 453, 458 (1987), 13 the administrative judge found that the appellant’s

denial that he made the statements in specifications 1-4 was “at least as credible”

as the HR Director’s accusations that he did and that, therefore, the agency failed

to prove these specifications by preponderant evidence. ID at 8. The

administrative judge similarly found that the record did not contain preponderant

evidence supporting specifications 12-17. ID at 12-14. In making this finding,

she explicitly credited the appellant’s testimony denying the cond uct described in

specifications 14 and 15. ID at 13.

In Hillen, 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, 35 M.S.P.R. at 458.

¶37 The agency argues on review that the Board should not defer to the

administrative judge’s credibility determinations because the initial decision

makes no reference to witness demeanor. PFR File, Tab 5 at 22. The agency

asserts that the Board should therefore reweigh the evidence and substitute its

own judgment on the issue of whether the appellant’s testimony is more credible

than the HR Director’s. Id. at 22-23. The agency contends that applying the

Hillen factors to the evidence shows that the HR Director is “far more credible”

than the appellant. Id. at 28.

¶38 This argument is unpersuasive. The Board must defer to an administrative

judge’s credibility determinations when they are based, explicitly or implicitly,

on observing the demeanor of witnesses testifying at a hearing, and the Board

may overturn such credibility findings only when it has “sufficiently sound”

reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.

Cir. 2002). It is well established that when, as here, an administrative judge has

heard live testimony, her credibility determinations must be deemed to be at least

implicitly based upon the demeanor of the witnesses. See Purifoy v. Department

of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016) (finding that the Board

must defer to an administrative judge’s demeanor-based credibility

determinations, “[e]ven if demeanor is not explicitly discussed”); Little v.

Department of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009). Thus, the Board

may overturn credibility findings only when it has “sufficiently sound” reasons

for doing so, as when the administrative judge’s findings are incomplete,

inconsistent with the weight of the evidence, and do not reflect the record as a

whole. Rapp v. Office of Personnel Management, 108 M.S.P.R. 674, ¶ 13 (2008).

¶39 Based on our review of the record, we find that the agency has not

established that there are sufficiently sound reasons for overturning the

administrative judge’s credibility determinations. See Crosby v. U.S. Postal

Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the

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

drew appropriate inferences, and made reasoned conclusions). In the initial

decision, the administrative judge explained in detail why she did not credit the

HR Director’s testimony that the appellant engaged in the alleged misconduct. ID

at 8-10, 12-14. For example, the administrative judge found that the HR Director

had a motive to fabricate the allegations set forth in specifications 1-4 because he

was under a great deal of stress in April 2014, due to the following

circumstances: (1) his employees were complaining about the HR Deputy

Director; (2) he felt pressured to intervene to improve the appellant’s

performance evaluation; (3) E.D., with whom he felt comfortable, was about to

leave, and the additional work and uncertainty of a new Director were upon him;

(4) he was in the middle of an ongoing dispute between his first - and second-level

supervisors about the appellant’s performance rating; and (5) he was looking for

another job. ID at 8-9. The administrative judge concluded that, as a result of

these circumstances, the HR Director “had motive to act in an extreme manner to

change his workplace dynamic.” ID at 9.

¶40 The agency argues on review that the Board should not defer to the

administrative judge’s credibility determinations regarding specifications 1-4

because the record does not support her finding that the HR Director’s work

circumstances in April 2014, were “spectacularly stressful.” PFR File, Tab 5

at 26; ID at 9. Specifically, the agency asserts that: (1) complaints about the HR

Deputy Director subsided after the HR office was reorganized in June 2013;

(2) there is no evidence that the arrival of a new Director resulted in additional

work for the HR Director; and (3) the HR Director was not involved in an

ongoing dispute between his first- and second-level supervisors, as the Director

was his second-level supervisor when he made the allegations against the

appellant, and there was no dispute between his first -level supervisor (i.e., the

appellant) and the Director at that time. PFR File, Tab 5 at 24-25. The agency

also challenges the administrative judge’s finding that the HR Director had a

motive to fabricate allegations because he was looking for a job. Id. at 25;

ID at 9. Instead, the agency argues, because the HR Director was about to leave

his position, it was likely that he would not act in such a manner in his final

months at the agency. PFR File, Tab 5 at 25.

¶41 Even assuming that the HR Director did not have a motive to fabricate the

allegations in specifications 1-4 based on the circumstances cited by the

administrative judge, we find that this is not a sufficiently sound reason to

overturn the administrative judge’s credibility determinations. The administrative

judge’s conclusion that the HR Director had a motive to fabricate these

allegations was not her only reason for finding the HR Director’s testimony not

credible. The administrative judge also found that the HR Director’s version of

several of the events at issue did not “incorporate logically with substantiated

record evidence.” ID at 9-10. In particular, the administrative judge found that,

during his testimony, the HR Director failed to satisfactorily explain why he

did not tell E.D. about the appellant’s alleged statements until April 28, 2014, and

why, after waiting so long, it was necessary to tell E.D. at all. ID at 10.

¶42 In assessing the relative credibility of the appellant and the HR Director, the

administrative judge also found it “worth noting” that the appellant di d not

incriminate himself in telephone calls that the HR Director initiated on April 28

and 29, 2014, at OIG’s request for the purpose of eliciting the appellant’s

acknowledgement that he made statements about harming E.D. ID at 9 n.12; IAF,

Tab 6 at 20-32, 36-50. The administrative judge noted that, during these

telephone calls, the appellant did not acknowledge that he had threatened E.D. or

indicate that he knew he was being recorded. ID at 9-10 n.12. In addition, the

administrative judge found that, instead of directly confronting the appellant

about his alleged statements concerning E.D., as OIG had instructed him to do,

the HR Director told the appellant that investigators had questioned him about

comments that the appellant had made to him about how the appellant would

“take [E.D.] out” if he ever wanted to hurt himself, and the appellant disputed

that characterization. ID at 10 n.12; IAF, Tab 6 at 28. The administrative judge

also noted that the HR Director subsequently cut the appellant off whi le he

appeared to be denying the alleged misconduct. ID at 10 n.12; IAF, Tab 6 at 29.

¶43 Moreover, the administrative judge’s credibility determinations regarding

the HR Director are consistent with those of the superior court judge in the

appellant’s criminal trial. In her written opinion, the superior court judge stated

that there were numerous reasons to doubt the HR Director’s credibility,

including his behavior during the recorded telephone calls between him and the

appellant in late April 2014, and his delay in reporting the appellant’s purported

statements about harming E.D. and committing suicide to anyone in a position to

take action to protect E.D. and the appellant. IAF, Tab 5 at 76-87. Thus, we

discern no reason to disturb the administrative judge’s credibility determinations

regarding specifications 1-4.

¶44 As for specifications 12-17, the agency briefly argues on review that the

administrative judge failed to consider “significant evidence” in finding that the

record did not include preponderant evidence to support these specifications, and

it asserts that the record shows that these specifications “are more likely true than

not.” PFR File, Tab 5 at 32-33. This argument is essentially mere disagreement

with the administrative judge’s explained findings and credibility determinations,

and provides no basis for us to reweigh the evidence or substitute our assessment

of the record evidence for that of the administrative judge ; therefore, we agree

with her determination that the agency failed to prove specifications 12-17.

Crosby, 74 M.S.P.R. at 105-06.

¶45 In sum, we find no basis for disturbing the administrative judge’s findings

that the agency failed to prove specifications 1-6, 9, and 12-17, and two parts of

specification 8. We find, however, that the agency proved specifications 7, 10,

11, and 18, and one part of specification 8. Because we find that the agency

proved these specifications, we also find that it proved the charge of conduct

unbecoming a Federal manager. See Burroughs v. Department of the Army,

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

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

supporting specifications is sufficient to sustain the charge).

Nexus

¶46 Because the administrative judge found that the agency failed to prove the

charge and reversed the appellant’s removal, she did not make findings as to

whether there is a sufficient nexus between the appellant’s misconduct and the

efficiency of the service, nor did she determine whether removal is a reasonable

penalty. We address those issues here. It is well settled that there is a sufficient

nexus between an employee’s misconduct and the efficiency of the service whe n,

as in this case, the conduct occurred at work. Parker v. U.S. Postal Service,

819 F.2d 1113, 1116 (Fed. Cir. 1987); Miles v. Department of the Navy,

102 M.S.P.R. 316, ¶ 11 (2006). Therefore, we find that disciplining the appellant

for his misconduct promotes the efficiency of the service.

Penalty

¶47 When examining the penalty imposed by the agency, the Board’s function

is not to displace management’s responsibility or to decide what penalty it would

impose, but to assure that management’s judgment has been properly exercised

and that the penalty selected by the agency does not exceed the maximum limits

of reasonableness. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306

(1981). When, as here, the Board sustains the agency’s charge, but not all of the

specifications of the charge, the agency’s chosen penalty is entitled to deference,

and the Board will review that penalty to determine whether it is within the

parameters of reasonableness. Payne v. U.S. Postal Service, 72 M.S.P.R. 646,

650 (1996); see generally Douglas, 5 M.S.P.R. at 305-06 (providing a

nonexhaustive list of factors that are relevant to determine the appropriate

penalty). If the agency’s penalty is not reasonable, the Board will mitigate only

to the extent necessary to bring it within the parameters of reasonableness, i.e.,

the Board will apply a maximum reasonable penalty standard. Payne,

72 M.S.P.R. at 651. In applying this standard, the Board will consider the

agency’s failure to sustain all of its supporting specifications. Id. That failure

may require, or contribute to, a finding that the agency’s penalty is not

reasonable. Id. Particularly pertinent to this appeal, we note that a general

charge like the one here, i.e., conduct unbecoming, may be sustained when the

Board finds that the appellant engaged in inappropriate behavior, even though it

does not rise to the level of impropriety asserted by the agency; however, the

penalty should reflect only the proven level of impropriety. See Russo v. U.S.

Postal Service, 284 F.3d 1304, 1309-10 & n.2 (Fed. Cir. 2002) (finding that

mitigating the agency’s removal action to a lesser penalty was appropriate

because the linchpin for imposing the penalty of removal was the agency’s

determination that the appellant had made a racial comment and the Board did not

find that such a comment was made).

¶48 The seriousness of the appellant’s offense is always one of the most

important factors considered by the Board in assessing the reasonableness of an

agency’s penalty determination. Rosenberg v. Department of Transportation,

105 M.S.P.R. 130, ¶ 30 (2007). Here, the agency only proved 5 of the charge’s

18 specifications. In determining whether removal is a reasonable penalty for the

appellant’s sustained misconduct, we consider the facts and circumstances

surrounding each of the proven specifications. See Douglas, 5 M.S.P.R. at 297

(stating that the facts and circumstances of each case are relevant to determining

the penalty).

¶49 Specifications 7 and 8 involve incidents in which the appellant made

improper statements. In such cases, the Board has specifically found that we

must consider the context and circumstances of the statement s in assessing the

penalty. Vernon v. U.S. Postal Service, 87 M.S.P.R. 392, ¶ 22 (2000).

Specification 7 concerns the appellant’s use of profanity to describe a Senior

Economist’s email while discussing the email with him. We find that the

seriousness of this misconduct is somewhat reduced because the appellant

immediately apologized for cursing when the Senior Economist took offense,

IAF, Tab 5 at 99; and did not use profanity during the rest of the meeting, id., see

Douglas, 5 M.S.P.R. at 305 (stating that the factors relevant in determining the

appropriateness of a penalty include whether the offense was repeated).

However, in the absence of evidence showing that profanity was commonplace i n

the work setting, the appellant’s use of profanity cannot be dismissed as

inconsequential. As for specification 8, while it was improper for the appellant to

reveal the name of an EEO complainant to those who did not need to know this

information, there was no showing that this misconduct resulted in any harm to

the complainant or the agency.

¶50 We next consider specification 10. Although it was unsuitable for the

appellant to place his hands over the mouth of the NMD Project Director during a

meeting to prevent him from speaking, the appellant testified without

contradiction that he and the Project Director are good friends and that the Project

Director did not even remember the incident. HT4 at 274-75 (testimony of the

appellant). Similarly, the Project Director confirmed that he had no recollection

of this incident and, in any event, stated that such conduct would not have

offended him, as he and the appellant had a good relationship. HT3 at 359-60,

380-81 (testimony of the NMD Project Director). Under the circumstances

described above, we find that specifications 7, 8, and 10, standing alone, do not

warrant severe disciplinary action.

¶51 Specification 11 concerns the appellant’s influencing the removal of

liability information from a legal memorandum by intimidating the drafting

attorneys. This offense had wide implications for the agency, including the

potential of financial repercussions and negative impact on the reputation o f the

agency. The misconduct on the appellant’s part appears to have been quite

intentional, as the attorneys had already revised the memorandum several times

but had not removed the contents with which the appellant disagreed. The

misconduct was also directly related to the appellant’s duties as COO, a senior

role which unquestionably requires looking out for the overall interests of the

agency. For these reasons, we find that specification 11 was highly serious and,

in combination with the other sustained specifications, provides support for

significant disciplinary action.

¶52 Specification 18 concerns the appellant’s asking the HR Director to

negotiate with E.D. on his behalf for a higher rating and subsequently sending the

HR Director an email with disparaging comments about E.D. This misconduct is

directly related to the appellant’s duties as a supervisor and was committed for

personal gain, as the appellant would have received a significant bonus if his

performance rating had been higher. Douglas, 5 M.S.P.R. at 305 (stating that

relevant factors in determining the appropriateness of a penalty include whether

the offense was committed for gain). For these reasons, we find that

specification 18 is the most serious of the sustained specifications, providing

further support for significant disciplinary action.

¶53 In assessing whether removal is a reasonable penalty for the sustained

specifications, we also have considered the following factors: the appellant’s

supervisory role; his past disciplinary record; his past work record; his length of

service, and the notoriety of the offense. As mitigating factors, we acknowledge

that the appellant has a good performance record and has not been subject to any

prior disciplinary action. IAF, Tab 6 at 74-88, 92-97. Also, while the conduct at

issue in specifications 1-4 generated a significant amount of press coverage, IAF,

Tab 6 at 4-18, the record does not indicate that the conduct described in the

proven specifications gained public notoriety. However, as aggravating factors,

we note that the appellant served with the agency for only 3 years and that, as

COO, the appellant was a high-ranking supervisor who occupied a position of

trust and responsibility. IAF, Tab 6 at 103-05 (COO position description). Thus,

the agency has the right to hold him to a higher standard of conduct for purpo ses

of determining the penalty. See Edwards v. U.S. Postal Service, 116 M.S.P.R.

173, ¶ 14 (2010) (finding that agencies are entitled to hold supervisors to a higher

standard of behavior than nonsupervisors because they occupy positions of trust

and responsibility); Walcott v. U.S. Postal Service, 52 M.S.P.R. 277, 284 (finding

that an agency may hold a high-ranking supervisor to a higher standard of

conduct for purposes of determining the penalty), aff’d, 980 F.2d 744 (Fed. Cir.

1992) (Table).

¶54 Although the agency failed to establish much of the specific misconduct,

the specifications we do sustain are without question quite serious. Thus, b ased

on the specific facts of this case and the proven level of impropriety, we find that

the agency’s chosen penalty is within the parameters of reasonableness and that

the sustained specifications warrant removal.

NOTICE OF APPEAL RIGHTS 14

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 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

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.

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

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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. 15 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

following address:

U.S. Court of Appeals

for the Federal Circuit

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.