The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL J. BROKMEIER, DOCKET NUMBER
Appellant, DE-0752-14-0325-I-1
v.
DEPARTMENT OF THE ARMY, DATE: April 18, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Peter C. Rombold, Esquire, Junction City, Kansas, for the appellant.
Eric L. Carter, Esquire, Fort Riley, Kansas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his reassignment and reduction in grade. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to apply the correct analytical framework to the appellant’s
affirmative defense of reprisal for engaging in activity protected under the
Rehabilitation Act, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was a GS-1811-12 Supervisory Criminal Investigator who
supervised a mixed group of both civilian and military personnel at the agency’s
Directorate of Emergency Services, Police Provost Marshal Division, Military
Police Investigations Branch, at Fort Riley, Kansas. On September 9, 2013, the
appellant’s supervisor, the Chief of Police, directed him to instruct his
subordinates to stop spreading rumors, because there were a number of rumors
circulating around the workplace, including a sexual harassment rumor involving
employees within the division. The appellant then held a meeting with three of
his military staff and stated: “If you are spreading rumors that can harm anyone’s
career, you are done. [. . .] This is still my office, no more running to the
Battalion or the Detachment. If you have an issue, come see me.” Initial Appeal
File (IAF), Tab 6 at 8, 53, 73, 87, 115, 122, 129. Based on that incident, the
agency issued a notice of proposed removal proposing his removal on charges of
“reprisal” and conduct unbecoming a Federal employee. Id. at 52-56. The
3
deciding official mitigated the proposed removal to a reassignment and reduction
in grade effective April 6, 2014. Id. at 27-32.
¶3 On appeal, after conducting a 3-day hearing, the administrative judge issued
an initial decision that sustained both charges based on his assessment of the
witnesses’ credibility, including the appellant’s demeanor. IAF, Tab 41, Initial
Decision (ID) at 6-14. He found that the appellant failed to prove his affirmative
defenses of disability discrimination, retaliation for protected equal employment
opportunity (EEO) activity, and harmful error. ID at 15-21. He also found that
the penalty was within the tolerable bounds of reasonableness. ID at 21-25.
¶4 The appellant petitions for review of the initial decision. Petition for
Review (PFR) File, Tab 5. The agency responds in opp osition to the petition for
review. PFR File, Tab 7.
ANALYSIS
¶5 The material facts of this appeal are set forth in the initial decision and are
not in dispute. The appellant admits that he made the following statement during
the meeting in question:
If you are spreading rumors that can harm anyone’s career, you are
done. [. . .] This is still my office, no more running to the Battalion
or the Detachment. If you have an issue, come see me.
IAF, Tab 6 at 8, 53, 73, 87, 115, 122, 129. He does not allege that the agency
misunderstood what he meant or that the agency took his statement out of
context. Instead, he alleges on review that he made this remark at the direction of
his boss, the Chief of Police. PFR File, Tab 5 at 8-11. It is not disputed that the
Chief instructed the appellant to meet with his subordinates and tell them to stop
spreading rumors. IAF, Tabs 36-38, Hearing Compact Diskette (HCD)
(testimony of the Chief). However, the administrative judge found, and we agree,
that the Chief’s instruction could not reasonably be construed as an order for the
appellant to threaten his subordinates with removal or to prohibit them from using
their military chain of command to raise possibly legitimate concerns. ID at 10.
4
¶6 As noted above, the agency brought two charges based on the incident in
question. Under the first charge, the agency contended that the appellant
committed “reprisal” in violation of Army Regulation (AR) 600 -20, ¶ 5-12(c),
Army Command Policy (2008), a section of the agency’s policy regarding the
Military Whistleblower Protection Act. IAF, Tab 6 at 52, 136 -38. Therefore, the
agency had to prove that the appellant’s actions violated the regulation. IAF,
Tab 6 at 52, 137; see Marler v. Department of Veterans Affairs, 58 M.S.P.R. 116,
119-20 (1993).
¶7 The general statement that precedes the enumerated subparagraph of
AR 600-20 states that agency employees may not take acts of reprisal against
soldiers for filing discrimination complaints or sexual harassment charges. IAF,
Tab 6 at 137. In the specific subparagraph cited in the notice of proposed
removal, the regulation states:
No employee or Soldier may take or threaten to take an unfavorable
personnel action, or to withhold or threaten to withhold a favorable
personnel action, in reprisal against any Soldier for making or
preparing a protected communication.
Id.
¶8 The agency did not provide the portion of the regulation defining the term
“protected communication.” The version of AR 600-20 released in 2014 defines
a “protected communication” as a communication within the chain of command or
to other specific individuals (e.g., a Member of Congress, an Inspector General,
an investigator, an auditor, etc.), which the member of the Armed Forces
“reasonably believes evidences a violation of law or regulation, including a law
or regulation prohibiting sexual harassment or unlawful discrimination, gross
mismanagement, a gross waste of funds or other resources, an abuse of authority,
or a substantial and specific danger to public health or safety.” AR 600-20,
¶ 5-12(b) (Nov. 6, 2014); see AR 600-20, ¶ 5-12(c), (d); see also AR 600-20,
¶ 5-12(b) (July 24, 2020) (providing a more expansive definition of the term
“protected communication” in the current version of the Army Regulation).
5
Accordingly, threatening reprisal is misconduct pursuant to the agency’s
regulations. Moreover, the appellant’s blanket prohibition again st “running to the
Battalion or the Detachment,” would prohibit his subordinate employees from
making a protected communication to the Battalion or the Detachment. We find,
therefore, that the administrative judge properly construed the first charge. In
addition, because the appellant admitted making the statement in question, and
because the statement on its face threatened negative consequences should one of
the appellant’s subordinates take issues to the Detachment or the Battalion, we
agree with the administrative judge that the agency proved its first charge. ID
at 6-12.
¶9 The second charge is a conduct unbecoming charge based on the same
incident and operative facts as the first charge. To prove a charge of conduct
unbecoming, the agency is required to demonstrate that the appellant engaged in
the underlying conduct alleged in support of the broad label. Raco v. Social
Security Administration, 117 M.S.P.R. 1, ¶ 7 (2011); Canada v. Department of
Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010). The agency labeled this an
“alternative” charge in its removal notice. The administrative judge correctly
concluded that, because the two charges contain slightly diff erent elements of
proof, they should be treated as separate charges. Campbell v. Department of the
Air Force, 72 M.S.P.R. 480, 484 (1996); Walker v. Department of the Navy,
59 M.S.P.R. 309, 318 (1993) (finding that a single set of actions can support more
than one charge as long as the charges entail different elements of proof). The
administrative judge further found that the agency proved the second charge by
preponderant evidence because it demonstrated that the appellant engaged in the
underlying conduct set forth in the proposal letter, and we see no reason to
disturb his determination.
6
¶10 As to the agency’s penalty determination, the administrative judge correctly
found that the agency properly considered the Douglas 2 factors most relevant to
the case and reasonably exercised its management discretion. Gray v.
Government Printing Office, 111 M.S.P.R. 184, ¶ 18 (2009) (stating that the
Board’s function concerning its review of an agency’s penalty selection is not to
displace management’s responsibility, but to determine whether management
exercised its judgment within the tolerable limits of reasonableness). Although
the agency brought two charges, it indicated that the second charge was an
alternative charge; as such, there is no evidence in the record that the deciding
official based his penalty determination on two charges, rather than one. To the
extent that he did, the reprisal charge alone is sufficient to sustain the penalty.
See Gaines v. Department of the Air Force, 94 M.S.P.R. 527, ¶ 6 (2003); Luciano
v. Department of the Treasury, 88 M.S.P.R. 335, ¶ 10 (2001), aff’d, 30 F. App’x
973 (Fed. Cir. 2002).
¶11 The appellant spends a significant portion of his petition for review
discussing the nature of the rumors he was directed to “ squelch” and implying
that the administrative judge’s discussion of the context of the meeting unfairly
makes his misconduct seem much worse than it actually was. PFR File, Tab 5
at 16-23. The record reflects that there were a number of rumors circulating in
the office at the time, including a rumor about a possible reduction in force and
another one about alleged sexual harassment. However, in their testimony, the
Chief and the appellant made it abundantly clear that the point of the meeting was
to discourage the spreading of all rumors regardless of subject matter, not only
regarding sexual harassment. HCD (testimony of the Chief and the appellant).
Therefore, to the extent that the administrative judge devoted attention to
2
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
7
background information about the nature of the rumors, his decision to do so
provides no reason to disturb the initial decision.
¶12 The appellant argues on review that the length of time between the hearing
and the issuance of the initial decision means that the administrative judge
probably forgot the testimony, and this led him to make erroneous fact findings.
PFR File, Tab 5 at 6-7. The appellant does not identify any material testimony
that the administrative judge inaccurately recalled and, as stated above, the
appellant admitted to the core facts underlying the charge. The length of time
between the hearing and the issuance of the initial decision provides no basis for
disturbing an initial decision, absent a showing that the appellant’s rights were
actually prejudiced by the delay. There has been no such showing here.
¶13 Finally, the appellant does not challenge on review the administrative
judge’s finding that he failed to prove his affirmative defens es. Nevertheless, we
modify the administrative judge’s analysis of the appellant’s retaliation claim to
the extent that the underlying activity concerned Rehabilitation Act-protected
activity. The administrative judge analyzed the appellant’s EEO retaliation
affirmative defense under the analytical framework set forth 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). ID at 18-19. Subsequent to the initial decision, the Board
issued Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 44-47,
which clarified that a more stringent standard applies in the context of retaliation
claims arising under the Rehabilitation Act, such that the appellant must prove
that his Americans with Disabilities Act-protected activity was a “but-for” cause
of the retaliation. The appellant’s raising disability discrimination in his EEO
complaint is protected by the Rehabilitation Act. ID at 18; Pridgen, 2022 MSPB
31, ¶ 44. However, given the administrative judge’s undisputed finding that the
appellant did not show that his protected activity was a motivating factor in his
removal, ID at 18-19, we find that the appellant failed to meet the more stringent
8
“but-for” standard that applies to a Rehabilitation Act retaliation claim. 3 As to
the appellant’s remaining affirmative defenses, we see no error in the
administrative judge’s analysis. 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); Broughton v. Department of Health
and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
NOTICE OF APPEAL RIGHTS 4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
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 appli cable 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.
3
In analyzing the appellant’s disability discrimination affirmative defense, the
administrative judge found the appellant did not prove that his disability was a
motivating factor in his reassignment and reduction in grade. ID at 15-16. We
therefore need not reach whether the appellant’s disability was a “but-for” cause of the
agency’s action. See Pridgen, 2022 MSPB 31, ¶ 40.
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.
9
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
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
10
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 the ir 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:
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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. 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).
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.
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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
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.