The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDRE WATSON, DOCKET NUMBER
Appellant, CH-0752-20-0450-I-2
v.
DEPARTMENT OF THE TREASURY, DATE: August 15, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Samuel Hayward, Esquire, Louisville, Kentucky, for the appellant.
John F. Schorn, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal. For the reasons discussed below, we GRANT
the agency’s petition for review, VACATE the administrative judge’s findings
concerning the charges, and SUSTAIN the appellant’s removal. We AFFIRM 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
administrative judge’s findings that the appellant failed to prove his affirmative
defenses of discrimination and retaliation or that the agency violated his due
process rights.
BACKGROUND
¶2 The appellant was formerly employed by the agency as a Police Officer
with the U.S. Mint. Watson v. Department of the Treasury, MSPB Docket
No. CH-0752-20-0450-I-1, Initial Appeal File (IAF), Tab 1 at 1. Effective
June 8, 2020, the agency removed him based on two charges of conduct
unbecoming and lack of candor. Id. at 16-23. In particular, the agency charged
the appellant with participating in a scheme to hire a private investigator to
investigate the private lives of two agency officials and providing false
statements to the agency’s Office of Inspector General (OIG) during OIG’s
investigation of the scheme. Id.
¶3 The appellant has consistently denied that he participated in hiring the
investigator. According to the agency’s witnesses, however, Officer C.F.
approached the appellant about hiring a private investigator to surveil the
agency’s second in command, Inspector K.P., and a supervisory officer,
Sergeant A.B. IAF, Tab 6 at 51. Officer C.F. wanted to hire the investigator
because she believed that Inspector K.P. and Sergeant A.B. had a relationship
outside of work, such that Inspector K.P. favored Sergeant A.B. and did not
properly address a work dispute between Officer C.F. and Sergeant A.B. Watson
v. Department of the Treasury, MSPB Docket No. CH-0752-20-0450-I-2, Appeal
File (I-2 AF), Hearing Transcript (HT) at 95-96 (testimony of Officer C.F.); IAF,
Tab 6 at 40-45. Officer C.F. approached the appellant about hiring the private
investigator because the appellant was upset that Inspector K.P. and others had
ranked him among the lowest for a promotion to lieutenant. IAF, Tab 6 at 50-51.
The appellant had previously filed an equal employment opportunity (EEO)
complaint against Inspector K.P. and expressed to Officer C.F. and another
3
coworker, Sergeant J.F., that he felt that Inspector K.P. should have recused
herself from his interview for the lieutenant promotion process. HT at 95
(testimony of Officer C.F.); HT at 61-63 (testimony of Sergeant J.F.). According
to Sergeant J.F., the appellant expressed that he wanted to hire an investigator or
someone to look into the hiring panel because he was so upset. HT at 63.
¶4 In the fall of 2019, the appellant and Officer C.F. had two discussions about
hiring a private investigator, which according to Officer C.F. the appellant agreed
to go along with and believed was a “good idea.” HT at 10-12 (testimony of the
appellant); HT at 96 (testimony of Officer C.F.); IAF, Tab 6 at 48. These
discussions concerned the reasons for hiring the investigator and how much it
would cost. HT at 10-12 (testimony of the appellant). Officer C.F. also sent the
appellant an email about a private investigation firm. HT at 105, 112, 139
(testimony of Officer C.F.); IAF, Tab 12 at 23-25. According to Officer C.F., she
paid the private investigator $300 via PayPal and the appellant paid h er $150 for
his portion in cash at work during a post change on the roof of the U.S. Bullion
Depository. HT at 93-94 (testimony of Officer C.F.); IAF, Tab 6 at 46, 49. In
December 2019, Sergeant J.F. had a conversation with Officer C.F. and the
appellant in the police command center during which Officer C.F. showed
Sergeant J.F. information on her phone that she had sent or was going to send to
the investigator. HT at 97-99 (testimony of Officer C.F.); HT at 64 (testimony of
Sergeant J.F.). According to Sergeant J.F., the appellant was present for part of
the conversation and he got the impression that the appellant was involved. HT
at 79-85, 87. Around that same date, on December 10, 2019, the appellant sent
Sergeant J.F. a text message, stating, “The investigator has been hired. If you
want to help with this and make it a three way split, then you’ll owe $100.” IAF,
Tab 5 at 45, Tab 6 at 64. The appellant testified that his text message was a joke,
as evidenced by Sergeant J.F.’s response in which Sergeant J.F. sent a picture of
the actor Peter Falk as the television detective Columbo and joked that the only
investigator he would agree to would be Columbo. IAF, Tab 5 at 46; HT at 42
4
(testimony of the appellant). Sergeant J.F. testified that, although he did not
think it was a joke, he responded jokingly because he was not interested in getting
involved and that was his way of saying no. HT at 67-68, 79.
¶5 Within days after receiving the appellant’s text message, Sergeant J.F.
reported to Inspector K.P. that the appellant and Officer C.F. had hired a private
investigator to surveil her and Sergeant A.B. HT at 68 (testimony of
Sergeant J.F); IAF, Tab 6 at 12, 62. On or about December 18, 2019, the
appellant and Officer C.F. were separately called int o the Field Chief’s office,
along with a union representative, J.S. HT at 18 (testimony of the appellant); HT
at 102 (testimony of Officer C.F.); HT at 228 (testimony of the union
representative). The Field Chief asked each of them separately if they were
involved in hiring the private investigator. Officer C.F. admitted that she had
hired the private investigator. HT at 100 (testimony of Officer C.F.). The
appellant denied any involvement. HT at 18-19 (testimony of the appellant).
Thereafter, the matter was referred to the agency’s OIG for investigation. IAF,
Tab 6 at 11-12. OIG concluded that the appellant participated in hiring the
investigator, provided false statements to OIG investigators, and failed to
cooperate fully with OIG. Id. at 4-8. Following OIG’s investigation, the agency
proposed and effected the appellant’s removal. IAF, Tab 5 at 24-31, 47-53.
¶6 The appellant filed a Board appeal challenging his removal. He raised
affirmative defenses of discrimination based on his race and color, retaliation for
his prior EEO activity, and a violation of his due process rights. IAF, Tab 1.
After holding the appellant’s requested hearing, the administrative judge issued
an initial decision, finding that the agency failed to prove either of its ch arges and
reversing the appellant’s removal. I-2 AF, Tab 20, Initial Decision (ID). In
reversing the removal action, the administrative judge found that the appellant’s
denial that he participated in the scheme to hire a private investigator was more
credible than the testimony of two agency witnesses to the contrary. ID at 8-17.
5
The administrative judge further found that the appellant failed to prove his
affirmative defenses. ID at 18-24.
¶7 The agency has filed a petition for review challenging the administrative
judge’s credibility findings, and the appellant has filed a response in which he
does not address the merits of the agency’s petition but rather moves to dismiss
the agency’s petition based on the agency’s failure to comply with its interim
relief obligations. Petition for Review (PFR) File, Tabs 1, 3, 5. 2
DISCUSSION OF ARGUMENTS ON REVIEW
The agency has complied with the interim relief order.
¶8 When an administrative judge has ordered interim relief under 5 U.S.C.
§ 7701(b)(2)(A), an agency must submit a certification with its petition for review
that it has either provided interim relief or that it has determined that the
appellant’s return to, or presence in, the workplace would be unduly disruptive.
Christopher v. Department of the Army, 107 M.S.P.R. 580, ¶ 5, aff’d, 299 F.
App’x 964 (Fed. Cir. 2008); 5 C.F.R. § 1201.116(a). If the agency determines
that the appellant’s return to the workplace would be unduly disru ptive, the
agency must nevertheless provide pay, compensation, and all other benefits
during the interim relief period. 5 U.S.C. § 7701(b)(2)(B). The Board’s
regulations allow an appellant to challenge an agency’s certification that it has
2
Neither party has challenged the administrative judge’s findings that the appellant
failed to prove his affirmative defenses of race and color discrimination, EEO reprisal,
or a due process violation, and we discern no reason to disturb these findings. ID
at 18-24. Regarding the appellant’s affirmative defense of discrimination based on
race, the administrative judge considered the appellant’s comparator evidence and
found that Officer C.F., who is Caucasian, was not similarly situated to the appellant
because Officer C.F. had no prior discipline. ID at 23-24. We construe such a finding
as tantamount to a finding that the agency had nondiscriminatory reasons for its
differences in discipline. See infra ¶ 27; see also Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 27-29 (remanding the appellant’s discrimination affirmative
defense because the administrative judge improperly found that the alleged comparator
was not similarly situated and, thus, did not make a finding as to whether the diffe rence
in treatment was the result of discrimination).
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provided interim relief, and the Board may dismiss a petition for review if it finds
the agency to be in noncompliance with its interim relief obligations. 5 C.F.R.
§ 1201.116(b), (e).
¶9 The appellant moves to dismiss the agency’s petition for failure to comply
with the interim relief order in the initial decision. PFR File, Tabs 3, 5. We
agree with the appellant that the agency did not include with its petition a
certification that it had provided the appellant interim relief effective as of the
date of the initial decision. However, we find unavailing the appellant’s
arguments that the agency has not complied with its interim relief obligations
because it did not inform him of the successful completion of a Standard Form
(SF) 50 and has not allowed him to return to his duties. PFR File, Tab 5. The
agency has submitted evidence demonstrating that, prior to the deadline for filing
a petition for review, it notified the appellant that it had determined that his
return to duty would cause an undue disruption and executed an SF-52 requesting
the appellant’s interim appointment in a nonduty paid status, effective
September 9, 2021. PFR File, Tab 4 at 8-10. The agency thereafter issued an
SF-50 reflecting the appellant’s interim appointment. Id. at 11. Such evidence is
sufficient to establish compliance. See Salazar v. Department of Transportation,
60 M.S.P.R. 633, 639 (1994) (stating that, to establish compliance with an interim
relief order, all that an agency must accomplish by the petition for review filing
deadline is to take appropriate administrative action, such as executing an SF-50
or SF-52 that will result in the issuance of a paycheck for the interim relief
period); see also Christopher, 107 M.S.P.R. 580, ¶¶ 6, 8 (noting that the Board’s
authority is restricted to reviewing whether an undue disruption determinati on
was made and whether the appellant is receiving appropriate pay and benefits) .
To the extent the appellant contends that the agency has not provided him with
the “ancillary benefits of employment,” PFR File, Tab 5 at 5-6, he has not
explained how the pay and benefits he is receiving as reflected in the time and
attendance records submitted by the agency, PFR File, Tab 4 at 12 -27, are not
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consistent with the requirements of 5 U.S.C. § 7701(b)(2)(B). Accordingly, we
find that the agency has complied with the interim relief order and the Board
exercises its discretion not to dismiss the agency’s petition for review.
The administrative judge’s credibility findings are contrary to the weight of the
evidence and do not reflect the record as a whole.
¶10 To resolve credibility issues, the administrative judge identifies the factual
questions in dispute, summarizes the evidence on each disputed question, states
which version she believes, and explains in detail why she found the chosen
version more credible, considering factors such as the following: (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 v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). Normally, the
Board will defer to an administrative judge’s credibility determinations when they
are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing. Haebe v. Department of Justice, 288 F.3d 1288,
1301 (Fed. Cir. 2002). However, the Board may overturn demeanor-based
credibility determinations when it has “sufficiently sound” reasons for doing so.
Id. Sufficiently sound reasons include circumstances when the administrative
judge’s findings are incomplete, inconsistent with the weight of the evidence, and
do not reflect the record as a whole. Faucher v. Department of the Air Force,
96 M.S.P.R. 203, ¶ 8 (2004); see Wallace v. Department of Commerce,
106 M.S.P.R. 23, ¶¶ 14-16 (2007) (rejecting an administrative judge’s credibility
determinations for a failure to consider conflicting evidence); Moore v. Equal
Employment Opportunity Commission, 97 M.S.P.R. 684, ¶ 12 (2004) (rejecting an
administrative judge’s credibility determination in favor of the testimony of one
8
agency witness where the testimony conflicted with sworn statements by three
impartial witnesses supporting the appellant’s account of events).
¶11 Here, we acknowledge that the administrative judge made specific
demeanor-based credibility findings. ID at 12, 14, 16. We recognize that the
Board would normally defer to such findings and only overturn them under
extremely rare circumstances. See Haebe, 288 F.3d at 1301. However, as set
forth below, we find that the record provides sufficiently sound reasons to
overturn the administrative judge’s credibility determinations regarding the
appellant’s participation in the scheme to hire a private investigator. In crediting
the appellant’s testimony denying his involvement in the scheme, the
administrative judge failed to acknowledge that the appellant’s version of events
is inconsistent with the weight of the evidence, including the testimony of the
agency’s witnesses, Officer C.F. and Sergeant J.F., the appellant’s December 10,
2019 text message to Sergeant J.F., and the transcript of a December 18, 2019
phone call between the appellant and Officer C.F.
The administrative judge erred when she failed to consider significant
evidence casting doubt on the appellant’s credibility.
¶12 The administrative judge found that the appellant’s testimony denying any
involvement was more truthful than the testimony of the agency’s two witnesses
because there was no indication that the appellant had previously lied or had a
propensity not to tell the truth. ID at 16. Although we agree with the
administrative judge that the appellant consistently denied participating in the
scheme, the administrative judge failed to consider or acknowledge the
inconsistencies in the appellant’s OIG testimony, hearing testimony, and phone
call with Officer C.F. regarding his knowledge of and participation in the scheme.
ID at 16. In his OIG interview on January 7, 2020, the appellant testified that he
had nothing to do with the scheme to hire a private investigator, he only
overheard Officer C.F. in the command center talking about hiring an
investigator, he thought it was a joke, he did not know why Officer C.F. would
9
have wanted to hire an investigator, and he could not speak to whether her plan
came to fruition. IAF, Tab 6 at 28-29. He further denied paying for the private
investigator or that he had any other relevant information such as phone calls or
text messages about hiring a private investigator. Id. Finally, the appellant stated
to the OIG investigators, “I can tell you right now with absolute certainty there’s
zero evidence on planet Earth to tie me to anything.” Id. at 29. However, as set
forth below, the record reflects that the appellant had direct knowledge regarding
the reasons why Officer C.F. wanted to hire the investigator, participated in the
plan and knew it had come to fruition, knew the cost of hiring the private
investigator and paid Officer C.F. for half of the cost, and attempted to recruit
Sergeant J.F. to split the cost three ways.
¶13 On December 18, 2019, the day that both the appellant and Officer C.F.
were placed on administrative leave, the appellant, unbeknownst to Officer C.F.
recorded their private phone call, which evidences a much greater knowledge and
involvement in the scheme than the appellant reported to OIG. IAF, Tab 12; HT
at 104 (testimony of Officer C.F.). During the call, rather than expressing
confusion as to why he was implicated in a scheme in which he purportedly was
not involved, the appellant discussed at length how he was not worried because
management could not prove he was involved because there was no phone record
of him talking to an investigator and no money exchanging hands between him
and an investigator. IAF, Tab 12. Officer C.F. and the appellant discussed who
could have reported the scheme, how management found out, how management
must have either tapped their emails or recorded what they said in the command
center. Id. They further discussed what evidence management could have that
could tie them to the hiring, and Officer C.F. reminded the appellant that she had
sent him an email about hiring a private investigator, which Officer C.F. was
going to delete. Id.; HT at 105, 112, 139 (testimony of Officer C.F.). Finally,
Officer C.F. attempts to apologize to the appellant for getting him involved, but
the appellant, who was secretly recording the conversation, cuts her off, stating,
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“No, no, no, no, no. Stop. . . . Stop, stop, stop. Nobody’s mixed up . . . in
anything.” IAF, Tab 12 at 19-20. We find that the transcript of this phone call
contradicts the appellant’s version of events that he was not involved in the
scheme to hire a private investigator and that he thought Officer C.F. was joking
about hiring an investigator. 3 Moreover, the transcript also corroborates
Officer C.F.’s testimony that the scheme was her idea, she felt bad about getting
the appellant involved, and she initially hoped to protect the appellant. HT at 101
(testimony of Officer C.F.).
¶14 The appellant’s OIG testimony that he did not know why Officer C.F.
would want to hire a private investigator and did not know if her plan came to
fruition is also inconsistent with his hearing testimony and a December 10, 2019
text message he sent to Sergeant J.F. At the hearing, the appellant testified about
two conversations he had with Officer C.F. regarding the specific reasons why
she wanted to hire an investigator and how much it was going to cost. HT
at 10-12 (testimony of the appellant). Additionally, on December 10, 2019, the
appellant sent Sergeant J.F. a text message that stated, “The investigator has been
hired. If you want to help with this and make it a three way split, then you’ll owe
$100.” IAF, Tab 6 at 64. The administrative judge credited the appellant’s
testimony that this text message was a joke because the appellant and
Sergeant J.F. had joked via text messages in the past, and Sergeant J.F. responded
in a joking manner. ID at 5, 10; IAF, Tab 26 at 8-10.
¶15 However, we cannot reconcile the administrative judge’s finding with the
record evidence. First, nothing in the appellant’s initial message reflects that he
3
The appellant initially submitted a recording of this phone call with his response to
the notice of proposed removal, IAF, Tab 5 at 37, 40, and the recording was also played
at the hearing. HT at 22. The parties do not dispute the accuracy of the recording or
the transcript of this call. IAF, Tab 12; HT at 21, 24 -25, 104. The administrative judge
deemed the audio recording and transcript admissible after affording the parties an
opportunity to brief the issue. IAF, Tabs 13, 15, 20; HT at 25.
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was joking and the appellant’s December 18, 2019 phone call with Officer C.F.
does not support the appellant’s theory that his text message was a joke or that he
thought Officer C.F.’s plan to hire an investigator was ridiculous. HT at 13
(testimony of the appellant). Second, Sergeant J.F. testified that he did not think
the appellant’s message was a joke and that his joking response to the appellant
was his way of saying he was not interested in participating without saying no. 4
HT at 67-68, 79. Third, the timing of the text message also suggests that the
appellant was not joking. Around the same date that the appellant sent the text
message, Sergeant J.F. testified that he had a conversation with Officer C.F. and
the appellant in the command center during which Officer C.F. showed him
information on her phone about hiring a private investigator. HT at 64, 79-85, 87
(testimony of Sergeant J.F.). 5 This included text messages to an investigator,
implying the investigator had been hired, and information about the reasons why
they thought Inspector K.P. and Sergeant A.B. were involved in some kind of
relationship. HT at 64-65 (testimony of Sergeant J.F.). Lastly, and most
significantly, Sergeant J.F. plainly did not believe that the appellant was joking
because he reported the appellant and Officer C.F.’s scheme to management,
which led to the OIG investigation. HT at 68-69; IAF, Tab 6 at 11-12. Thus, we
find that the appellant’s December 10, 2019 text message to Sergeant J.F. was
serious and contradicts the appellant’s version of events. We further find the
appellant’s version of his involvement to be internally inconsistent as well as
4
Although the record reflects that the appellant and Sergeant J.F. had joked via text
messages in the past, the context and punctuation of those messages renders it obvious
they are jokes. IAF, Tab 26 at 8-9. The administrative judge’s finding that
Sergeant J.F. denied that he joked with the appellant in past text messages is not
accurate. ID at 10. Sergeant J.F. did not deny that he did so but rather testified that it
was not a daily or regular occurrence. HT at 76.
5
Consistent with Sergeant J.F.’s account, Officer C.F. also corroborated that they tried
to recruit Sergeant J.F., she showed Sergeant J.F. her message to the investigator, and
the appellant messaged Sergeant J.F. about splitting the cost. HT at 140; IAF, Tab 6
at 50.
12
inconsistent with the record evidence. Moreover, the appellant had a motive to
participate in the hiring based on his issues with Inspector K.P., including his
prior EEO complaint and his dissatisfaction with the results of the lieutenant
exam, for which Inspector K.P. served on the hiring panel. See supra ¶ 3. Based
on the foregoing, we decline to credit the appellant’s testimon y.
The administrative judge erred in finding Officer C.F.’s testimony was not
credible due to prior inconsistent statements.
¶16 The administrative judge found that Officer C.F.’s testimony was not
credible based largely on the fact that Officer C.F. had made inconsistent
statements concerning whether the appellant was involved in hiring the private
investigator. ID at 12. While under oath at the hearing and during her official
OIG interview, 6 Officer C.F. stated that she approached the appellant about hiring
a private investigator, she paid the investigator $300 via PayPal, and the appellant
paid her $150 in cash at work during a shift change on the roof of the U.S.
Bullion Depository. HT at 93-94; IAF, Tab 6 at 37, 45-46. Officer C.F. was also
honest and admitted to the Field Chief that she hired the investigator when she
was first questioned after Sergeant J.F. reported the scheme to management. HT
at 99-100. The Field Chief did not ask her if anyone else was involved. HT
at 321 (testimony of the Field Chief). Although Officer C.F. initially made
several statements that the appellant was not involved, such statements were made
informally and not to management or under oath. First, Officer C.F. initially told
her union representative that the appellant was not involved. HT at 117
(testimony of Officer C.F.). Second, on the day she was placed on administrative
leave, Officer C.F. overheard on the radio that the appellant was being called into
the Field Chief’s office and stated to her union representation and another
6
Prior to her OIG interview, Officer C.F. received a Kalkines warning notifying her of
her obligation to disclose information in her possession during OIG’s administrative
inquiry and that her failure to answer fully and truthfully could result in discipline,
including dismissal. IAF, Tab 6 at 36.
13
sergeant who was walking her out something to the effect of “why are you calling
him, he didn’t have anything to do with this.” HT at 131 (testimony of
Officer C.F.); HT at 230 (testimony of the union representative). Finally,
Officer C.F. told the appellant during their December 18, 2019 phone call that she
told the Field Chief that the appellant was not involved. IAF, Tab 12 at 12; HT
at 120-21 (testimony of Officer C.F.). At the hearing, Officer C.F. testified that
her December 18, 2019 statement to the appellant that she told the Field Chief he
was not involved was not true and the Field Chief confirmed that he did not ask
Officer C.F. who else was involved. HT at 137 (testimony of Officer C.F.); HT
at 321 (testimony of the Field Chief).
¶17 Officer C.F. testified that she was initially trying to protect the appellant
because the scheme was her idea and she did not want the appellant to be upset
with her or for him to get into trouble, particularly because he had already
recently been disciplined. HT at 101. However, after meeting with her union
representative, who advised her that she would be under oath and needed to tell
the truth or she could lose her job, she confirmed the appellant’s involvement and
thereafter consistently maintained that the appellant was involve d. HT at 116-18,
121, 125 137 (testimony of Officer C.F.); HT at 239-40 (testimony of the union
representative). We disagree with the administrative judge that this explanation
is not credible. It is entirely plausible that Officer C.F. would initially attempt to
cover up the appellant’s involvement in her plan during informal discussions but
admit the truth when faced with an official OIG interview or hearing testimony
under oath.
¶18 In declining to credit Officer C.F.’s testimony, the administrative judge
failed to consider that her testimony is consistent with Sergeant J.F.’s testimony
concerning the appellant’s involvement as well as consistent with the rest of the
record evidence. Nor did the administrative judge acknowledge that the appellant
was similarly not honest with the union representative and did not disclose his
December 10, 2019 text message to Sergeant J.F. HT at 244-45 (testimony of the
14
union representative). Finally, the administrative judge found without
explanation or citation to any evidence that Officer C.F. had a motive to spread
the culpability for her plan to the appellant who m she knew was already under
investigation. ID at 14. Nothing in the record, however, suggests that
Officer C.F. made a deal to receive a lesser penalty in exchange for admitting to
the appellant’s involvement and Officer C.F. denied that she made any deal. HT
at 131. Officer C.F. received a 30-day suspension based on one charge of
conduct unbecoming, which is consistent with the union representative’s
testimony that, he advised Officer C.F. that, in his experience, management
rewards honesty and truthfulness and the penalties are less severe if an employee
is honest and owns up to her mistakes. IAF, Tab 5 at 32-36; HT at 240
(testimony of the union representative). Based on the foregoing, we find that
Officer C.F.’s testimony is credible to the extent it is consistent with the
testimony of Sergeant J.F. and supported by the record evid ence, including the
appellant’s December 10, 2019 text message and the December 18, 2019 phone
call between the appellant and Officer C.F. See Hillen, 35 M.S.P.R. at 460
(identifying contradiction by or consistency with other evidence as factors to be
considered in determining credibility).
The administrative judge’s credibility findings regarding Sergeant J.F. are
not well reasoned.
¶19 The administrative judge found that Sergeant J.F. had limited capacity to
observe whether the appellant was involved in the scheme and characterized his
testimony as mere surmise that the appellant was involved based on having seen
the appellant and Officer C.F. whispering in the command center. ID at 8-9.
Such a characterization is not an accurate or full description of Sergeant J.F .’s
testimony. Sergeant J.F. testified that he believed the appellant was involved
based on his conversation with Officer C.F. and the appellant in the command
center in which Officer C.F. showed him information on her phone regarding
hiring the private investigator. HT at 64-65, 79-87. Such testimony is consistent
15
with Officer C.F.’s account that she showed Sergeant J.F. information that she
was going to or had sent to the investigator and the appellant messaged him about
a three-way split. HT at 140. Although we agree that Sergeant J.F.’s testimony is
confusing regarding the specific timing of events, we do not find such
shortcomings sufficient to render his testimony incredible. Rather, we find more
significant that his testimony is generally consistent with Officer C.F.’s account
concerning the attempt to recruit him as well as with the rest of the record
evidence.
¶20 Additionally, in finding Sergeant J.F.’s testimony not credible, the
administrative judge attributed weight to minor inconsistencies and made other
findings and inferences the significance of which is not apparent. For example,
the administrative judge found significant that Sergeant J.F. could not recall the
specific date of his conversation in the police command center . 7 ID at 8.
However, it is not remarkable for a witness not to remember a specific date on
which an event occurred over a year later. The administrative judge also found
significant that Sergeant J.F. “delayed” notifying Inspector K.P. of the scheme
and found improbable Sergeant J.F.’s explanation about why he waited a couple
days after he learned of the scheme before reporting it to Inspector K.P. ID at 11.
Sergeant J.F. testified that, according to the information he saw on Officer C.F.’s
phone, the investigator was not supposed to be hired until the next Wednesday, so
that still “gave me some time, a person time to, you know, do whatever she
wanted to do with it.” HT at 68. Nothing in the record contradicts
Sergeant J.F.’s testimony that the investigator had been hired to conduct
7
Contrary to the administrative judge’s finding, we do not find significant
inconsistencies between the summary of the appellant’s OIG testimony and his hearing
testimony, particularly given the record contains only a brief summary of his OIG
interview, not a complete transcript. ID at 8-9; IAF, Tab 6 at 14. Sergeant J.F. testified
that he could not remember the exact dates and that he also told the OIG investigator
that he could not recall the exact dates. HT at 78.
16
surveillance the next Wednesday. HT at 64 (testimony of Sergeant J.F); HT at 99
(testimony of Officer C.F.). Additionally, the administrative judge also found it
telling that the appellant mixed up his emotions with that of Inspector K.P. based
on his mid-sentence change from a reference to himself (me) to a reference to
Inspector K.P. (a person). ID at 11-12. To the extent the administrative judge
found that this demonstrated that Sergeant J.F. needed more time to consider what
to do or whether to report the situation, ID at 11-12, we fail to discern how this
renders Sergeant J.F.’s testimony not credible. Rather, such a finding is
consistent with Sergeant J.F.’s testimony that he took some time to think about
the situation, determined that it was not right and Inspector K.P. should be aware
of the situation, and he decided to talk to Inspector K.P. the next time he saw her
in person. HT at 68.
¶21 Finally, the administrative judge found that Sergeant J.F. may have been
motivated by a desire to avoid the appearance of any involvement in the scheme
given that when he reported the scheme, he only provided the appellant’s initial
text message to him about hiring the investigator and not his own joking
responses. ID at 9. The administrative judge found that this was significant
because Sergeant J.F.’s responses established that the appellant’s initial message
was a joke. ID at 9-10. However, for the reasons described above, we disagree
that the appellant’s text message was a joke.
¶22 After thoroughly considering the documentary evidence and the hearing
testimony, we credit Sergeant J.F.’s testimony and find that the agency witness’s
version of events is more likely than the appellant’s version of events.
The agency proved its charges.
¶23 A generic charge such as conduct unbecoming does not require specific
elements of proof. It is established by proving that the employee committed the
acts alleged in support of the broad label. See Canada v. Department of
Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010). Essential to the charge,
however, is that the conduct was unattractive, unsuitable, or detracted from the
17
employee’s character or reputation. See Miles v. Department of the Army,
55 M.S.P.R. 633, 637 (1992). Considering our above analysis, we find that the
agency proved by preponderant evidence that the appellant participated in hiring
a private investigator to investigate the private lives of two U.S. Mint Protection
officials. Moreover, we find such conduct was unsuitable and detracted from the
appellant’s reputation, particularly given the appellant’s position as a Police
Officer. Accordingly, we sustain the agency’s conduct unbecoming charge.
¶24 Lack of candor is a broad and flexible concept “whose contours and
elements depend upon the particular context and conduct involved.” Ludlum v.
Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002). Such a charge does
not require proof of intent but rather “may involve a failure to disclose something
that, in the circumstances, should have been disclosed in order to make the given
statement accurate and complete.” Id. Lack of candor “necessarily involves an
element of deception.” Fargnoli v. Department of Commerce, 123 M.S.P.R. 330,
¶ 17 (2016) (quoting Ludlum, 278 F.2d at 1284). Here, the agency charged the
appellant with providing false statements to OIG investigators and no t fully
cooperating with an official inquiry. IAF, Tab 1 at 12. As examples, it noted that
the appellant falsely denied participating in the hiring of a private investigator
and falsely denied communicating verbally or via text message with anyone about
hiring a private investigator. Id. As described above, the appellant was not
forthcoming with OIG concerning his knowledge of and participation in the
scheme to hire the investigator. Thus, we find that the agency proved both that
the appellant lacked candor regarding his denial that he participated in the hiring
of the investigator and by denying that he sent any text messages regarding hiring
an investigator. Accordingly, we sustain the agency’s lack of candor charge.
There is a nexus between the misconduct and the efficiency of the service.
¶25 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
18
efficiency of the service, nor did she determine whether removal is a reasonable
penalty. We address those issues now. It is well settled that there is a sufficient
nexus between an employee’s misconduct and the efficiency of the service when,
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). Further, the Board has found sufficient nexus
between an employee’s misconduct and the efficiency of the service when the
sustained misconduct concerned an employee’s lack of candor during an
administrative inquiry. See Ludlum v. Department of Justice, 87 M.S.P.R. 56,
¶ 28 (2000) (stating that the appellant’s lack of candor strikes at the very heart of
the employer-employee relationship), aff’d, 278 F.3d 1280 (Fed. Cir. 2002).
Therefore, we find that the agency established nexus.
The penalty of removal is reasonable.
¶26 When, as here, all the agency’s charges are sustained, the Board will review
the agency-imposed penalty only to determine if the agency considered all the
relevant factors and exercised management discretion within the tolerable limits
of reasonableness. Pinegar v. Federal Election Commission, 105 M.S.P.R. 677,
¶ 53 (2007); see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
(1981) (articulating a nonexhaustive list of 12 factors that are relevant in
assessing the appropriate penalty for an act of misconduct). In making this
determination, the Board must give due deference to the agency’s primary
discretion in maintaining employee discipline and efficiency, recognizing that the
Board’s function is not to displace management’s responsibility but to ensure that
managerial judgment has been properly exercised. Pinegar, 105 M.S.P.R. 677,
¶ 53. The Board will modify or mitigate an agency-imposed penalty only when it
finds that the agency failed to weigh the relevant factors or that the penalty
clearly exceeds the bounds of reasonableness. Id.
¶27 The record reflects that the deciding official considered the relevant factors,
including, the nature and seriousness of the offense. See Singh v. U.S. Postal
19
Service, 2022 MSPB 15, ¶ 18 (noting that the Board has frequently stated that the
nature and seriousness of the offense, and its relation to the employee’s duties,
position, and responsibility, is the most important factor in assessing the
reasonableness of the penalty). Regarding this factor, the deciding official
considered that the offenses touched on honesty and integrity, which was
especially serious because the appellant was a law enforcement officer. IAF,
Tab 1 at 20. To that end, he also appropriately held the appellant to a higher
standard of conduct. Id. at 21; see, e.g., Reid v. Department of the Navy,
118 M.S.P.R. 396, ¶ 26 (2012). He also considered that the appellant’s record for
being less than truthful had potential to render him Giglio impaired. 8 HT at 176,
188 (testimony of the deciding official). Significantly, he found the appellant’s
actions affected the privacy and security of the facility and management officials,
which is especially serious at the U.S. Bullion Depository, a classified site that
stores precious metal bullion reserves including vast quantities of gold. IAF,
Tab 1 at 20; HT at 170, 174-75, 185-86 (testimony of the deciding official). The
deciding official also determined that, although the appellant had been employed
by the U.S. Mint for approximately 4 years, management had lost confidence in
the appellant’s ability to perform his assigned duties and noted that the appellant
had recently served a 14-day suspension for violation of U.S. Mint policy and
conduct unbecoming a Federal officer. Id. at 21; HT at 186.
¶28 The appellant also raised a claim of disparate penalty. The consistency of
the penalty is simply one of many factors to consider in assessing the
reasonableness of the penalty and, although the fact that a comparator employee
8
Under Giglio v. United States, 405 U.S. 150 (1972), investigative agencies must turn
over to prosecutors any potential impeachment evidence concerning the agents involved
in the case. Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 4 n.1 (2012). The
prosecutor will then exercise discretion regarding whether the impeachment evidence
must be turned over to the defense. Id. Such potential impeachment evidence may
render an agent’s testimony to be of marginal value and place at risk any case that relies
on such testimony. Id.
20
received a less severe penalty should be considered in favor of mitigating the
penalty, mitigation is not required in all such cases. Singh, 2022 MSPB 15, ¶ 18.
The relevant inquiry for assessing a claim of disparate penalties when weighing
the reasonableness of a penalty is whether the agency knowingly and unjustifiably
treated employees who engaged in the same or similar offenses differently. Id.,
¶ 14. Although the universe of potential comparators will vary from case to case,
it should be limited to those employees whose misconduct and/or other
circumstances closely resemble those of the appellant . Id., ¶ 13. In most cases,
employees from another work unit or supervisory chain will not be proper
comparators. Id. We find the appellant’s disparate penalty arguments unavailing.
¶29 First, in addressing the appellant’s discrimination affirmative defense, the
administrative judge considered whether the agency had legitimate reasons for
issuing Officer C.F. a less severe penalty for similar misconduct as the appellant.
ID at 23-24. We agree with the administrative judge that the agency was justified
in treating Officer C.F. differently by issuing her a 30-day suspension. ID at 24.
Officer C.F. was honest during her OIG interview and therefore she was only
charged with conduct unbecoming and not lack of candor, and her misconduct did
not raise any concerns regarding her potential to testify under oath. S he also had
no prior discipline whereas the appellant had recently served a 1 4-day suspension,
and she had over 17 years of service with the agency compared to the appellant’s
less than 5 years. IAF, Tab 5 at 32-35.
¶30 Second, the appellant contended that Officer J.S. received a less severe
penalty based on charges of failure to follow U.S. Mint police procedures and
lack of candor. IAF, Tab 35. The record reflects that Officer J.S. engaged in
misconduct when he exercised police authority outside of his jurisdiction by
conducting an unauthorized stop of a car for an alleged traffic violation and
inaccurately reported the circumstances surrounding the incident. HT at 257 -58;
IAF, Tab 23 at 71-77. Assuming without deciding that Officer J.S. is a proper
comparator, we find that the agency treated him similarly. According to the
21
deciding official, 9 Officer J.S. was also removed based on charges of conduct
unbecoming and lack of candor. HT at 197. Similarly, the union representative
testified that the agency removed Officer J.S. but that Officer J.S. appealed his
removal to the Board and the parties entered into a settlement agreement , the
terms of which possibly included allowing Officer J.S. to retire. HT at 255-58,
266, 276, 279. We find that Officer J.S. received the same penalty as the
appellant and the fact that such penalty may have later been modified via a
settlement agreement does not show that the agency knowingly and unjustifiably
treated the appellant differently. See Dick v. U.S. Postal Service, 52 M.S.P.R.
322, 325 (finding that an agency is not required to explain lesser penalties
imposed against other employees whose charges were resolved by settleme nts),
aff’d, 975 F.2d 869 (Fed. Cir. 1992) (Table).
¶31 Finally, the appellant also asserted that Officer M.W. received a 90-day
suspension after he was found guilty of driving under the influence and sentenced
to jail time. I-2 AF, Tab 18 at 10. We find that Officer M.W.’s misconduct was
not sufficiently similar to the appellant’s misconduct to render him a proper
comparator. 10 See Singh, 2022 MSPB 15, ¶¶ 13, 18 (holding that the Board
should not attempt to weigh the relative seriousness of various offenses in order
to determine whether two employees who committed different acts of misconduct
were treated disparately). Having considered the relevant Douglas factors, we
find that removal was a reasonable penalty under the circumstances. See, e.g.,
Jackson v. Department of the Army, 99 M.S.P.R. 604, ¶¶ 2, 6, 8 (2005) (finding
9
The same individual served as the deciding official for the appellant’s removal as well
as for Officer J.S.’s removal.
10
To the extent the appellant is alleging that a prior Inspector was treated more
favorably than him, I-2 AF, Tab 18 at 4; HT at 282, such an individual does not appear
to be a proper comparator because he was a high-ranking supervisor who was removed
for, among other things, complaints regarding his management style, HT at 283.
Regardless, even if he were a proper comparator, the record reflects that, like the
appellant, he was also removed. HT at 283 (testimony of the union representative).
22
that removal of police officers was a reasonable penalty for conspiracy to falsify
firearm tests and lack of candor).
NOTICE OF APPEAL RIGHTS 11
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 reg arding which cases fall
within their jurisdiction. If you wish to seek review of this final decision, you
should immediately review the law applicable to your claims and carefully follow
all filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for revi ew 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).
11
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.
23
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
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. 420 (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
24
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
25
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 a ny court of appeals of
competent jurisdiction. 12 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
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
12
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.
26
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.