The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BYRON K. GRANT, DOCKET NUMBER
Appellant, DA-0752-16-0480-I-1
v.
DEPARTMENT OF VETERANS DATE: March 28, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven E. Brown, Esquire, Westlake Village, California, for the appellant.
Brandi M. Powell, New Orleans, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 contrast, a
precedential decision issued as an Opinion and Order h as been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpret ation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an a buse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant was formerly employed by the agency as a Supply Technician
until he was removed, effective July 8, 2016, based on one charge of conduct
unbecoming. Initial Appeal File (IAF), Tab 6 at 11-15. The charge was based on
one specification in which the agency alleged that the appellant engaged in a loud
verbal exchange with another employee that escalated to a physical altercation,
necessitating agency police to respond to the scene. Id. at 13.
¶3 The appellant filed an appeal disputing the charges. IAF, Tab 1. After
holding the requested hearing, the administrative judge issued an initial decision ,
sustaining the appellant’s removal. IAF, Tab 15, Initial Decision (ID). The
administrative judge found that the agency proved its charge, there was a nexus
between the sustained charge and the efficiency of the service, and the penalty of
removal was reasonable. ID at 2-9.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not responded to the appellant’s petition.
3
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency proved its charge.
¶5 The administrative judge found that the agency proved the essence of its
charge, which was that the appellant engaged in a verbal and physical altercation
in the workplace. ID at 3-5. On review, the appellant contends that the
administrative judge erred in relying on Hicks v. Department of the Treasury,
62 M.S.P.R. 71 (1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995) (Table), for the
proposition that an agency is only required to prove the essence of its charge and
need not prove each factual specification supporting the charge. PFR File, Tab 1
at 4. He further contends that the administrative judge erred in finding that the
agency proved its charge because it failed to demonstrate that he engaged in a
loud verbal exchange or that he chased the other emplo yee back into the
warehouse with a brick. Id. The administrative judge considered the appellant’s
testimony that he did not pick up a brick during the altercation, that his voice was
not loud before exiting the warehouse, and that he did not place his ha nds on the
other employee’s chest; rather, the employee’s chest met his hands because the
employee was standing so close to him. ID at 5. However, the administrative
judge found that even if she credited that testimony, the agency still proved the
essence of its charge. ID at 5. We discern no error in her analysis.
¶6 The appellant also contends that the administrative judge improperly found
that he pursued the other employee with aggression, despite his testimony to the
contrary. PFR File, Tab 1 at 4. However, the administrative judge considered the
appellant’s testimony that he did not run after the other employee but found that
it was not credible because it conflicted with the appellant’s statement prepared a
few days after the incident, the police officer’s summary of the appellant’s
statement regarding the incident, a witness’s signed statement, and another
witness’s testimony at the hearing. ID at 4-5. Thus, we find that the appellant’s
argument constitutes mere disagreement with the administrati ve judge’s findings
and does not provide a basis for reversal. See, e.g., Crosby v. U.S. Postal Service,
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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); Broughton v. Department of Health
and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
The administrative judge properly found that the penalty of removal was
reasonable.
¶7 On review, the appellant contends that the administrative judge erred in not
mitigating the penalty. PFR File, Tab 1 at 4. In determining an appropriate
penalty, an agency must review relevant mitigating factors, also known as the
Douglas factors pursuant to Douglas v. Veterans Administration, 5 M.S.P.R. 280,
305-06 (1981). The Board gives due deference to the agency’s discretion in
exercising its managerial function of maintaining employee discipline and
efficiency. See Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 6 (2013).
Thus, the Board will modify a penalty only when it finds that the agency failed to
weigh the relevant factors or that the penalty the agency imposed clearly
exceeded the bounds of reasonableness. Id.
¶8 The administrative judge deferred to the agency’s decision to remove the
appellant after finding that the deciding official considered the relevant Douglas
factors, including the nature and seriousness of the offense, the appellant’s length
of service, and his prior 7-day suspension for conduct unbecoming based on a
verbal altercation with another employee in the workplace. ID at 7-8. The
administrative judge also found that the deciding official considered the
appellant’s self-defense claim but determined that the appellant was an active
participant in the altercation because he chose to pursue the conflict, rather than
exercise his opportunity to retreat. 3 ID at 7-8. We agree with the administrative
3
The administrative judge similarly rejected the appellant’s self -defense claim and
found that the appellant was not without fault in the encounter in that he could have
retreated from the situation but instead chose to chase the employee back inside the
warehouse. ID at 5-6. Although the appellant argues on review that this was an error
because the record establishes that the other employee was the initial aggressor, PFR
5
judge that the deciding official appropriately considered all of the relevant
Douglas factors, and thus his penalty determination is entitled to deference. We
further agree with the administrative judge that the penalty of removal was within
the bounds of reasonableness.
¶9 Based on the foregoing, we affirm the initial decision, sustaining the
appellant’s removal.
NOTICE OF APPEAL RIGHTS 4
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
File, Tab 1 at 4, such an assertion fails to show any error in the administrative judge’s
finding that the appellant subsequently failed to retreat from the situation.
4
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.
6
(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 th e
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.g ov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
7
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:
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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. 5 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
717 Madison Place, N.W.
Washington, D.C. 20439
5
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.
9
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.