# Richard Hornsby v. Federal Housing Finance Agency

> Merit Systems Protection Board · April 28, 2022

URL: https://www.frixlaw.com/law-library/cases/9373733

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** April 28, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9373733

## How later opinions describe it (automated extraction)

- 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

## Opinion text

1

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

RICHARD HORNSBY, DOCKET NUMBER
Appellant, DC-0752-15-0576-I-2

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2

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

2
The appellant’s performance rating for 2012 was “Outstanding.” IAF, Tab 6 at 92-97.
3

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.

3
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.
4

¶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

4
The Director was both the proposing and the deciding offici al. IAF, Tab 5 at 33, 96.
5
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.
5

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.
6

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

6
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).
7

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

7
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.
8

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.
9

¶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
10

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.
8
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).
9
The proposal notice and decision letter incorrectly identify the CIO as the “Chief
Operating Officer.” IAF, Tab 5 at 30, 91.
11

¶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

10
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).
12

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

11
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).
13

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
14

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.
15

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.

12
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).
16

¶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
17

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.”
18

(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.

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.
19

¶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,
20

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;
21

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
22

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
23

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,
24

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
25

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
26

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
27

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

14
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.
28

about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
29

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
30

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

15
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.
31

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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9373733. Public record. Not legal advice.