Opinion

Shawn Cassio v. Department of the Army

Court: Merit Systems Protection Board
Filed: Dec 12, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.6%

finding that, when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge

How later courts described this case

finding that, when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHAWN CASSIO, DOCKET NUMBER

Appellant, PH-0752-22-0028-I-1

DEPARTMENT OF THE ARMY, DATE: December 12, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Morgan Smith and Carson S Bailey , Dallas, Texas, for the appellant.

Gabriel Tese and Robyn Peterson , Chambersburg, Pennsylvania, for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review and the appellant has filed a cross

petition for review of the initial decision, which found that the agency proved the

unprofessional conduct charge and nexus, the appellant did not prove his claim of

harmful procedural error, and the removal penalty should be mitigated to a 60-day

suspension. On petition for review, the agency argues that its decision to remove

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the appellant is entitled to deference, removal is a reasonable penalty for the

sustained misconduct, and a 60-day suspension is not a reasonable penalty.

Petition for Review (PFR) File, Tab 3 at 11-21. In his cross petition for review,

the appellant argues that the administrative judge erred in sustaining

specifications (b) and (d) and the unprofessional conduct charge, and she

wrongfully evaluated his affirmative defense of harmful procedural error. PFR

File, Tab 7 at 7-17. Generally, we grant petitions such as these 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 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 neither party has

established any basis under section 1201.115 for granting the petition or cross

petition for review. Therefore, we DENY the petition for review and the cross

petition for review and AFFIRM the initial decision, which is now the Board’s

final decision. 5 C.F.R. § 1201.113(b).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 For the first time on petition for review, the appellant asserts that the

agency must prove unprofessional conduct and a toxic work environment to

sustain specification (b), and it must prove unprofessional conduct and

“Intimidation/Bullying” to sustain specification (d). PFR File, Tab 7 at 12-13;

Initial Appeal File (IAF), Tab 9 at 84-86. The Board will not generally consider

an argument raised for the first time in a petition for review absent a showing that

it is based on new and material evidence not previously available despite the

party’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271

(1980). The appellant has not made such a showing. However, even if we

consider this argument, we find that a different outcome is not warranted.

¶3 A charge usually has two parts (1) a name or label that generally

characterizes the misconduct, and (2) a narrative description of the actions that

constitute the misconduct. Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 203

(1997). Here, the agency charged the appellant with unprofessional conduct, and

it set forth a narrative description of the alleged misconduct in

specifications (a)-(d). 2 IAF, Tab 9 at 84-86. The agency’s decision to use

additional terms at the beginning of the narrative in specifications (b) and (d),

such as “Toxic Work Environment” and “Intimidation/Bullying,” respectively,

does not impose an additional proof requirement on the agency. To the contrary,

these terms are duplicative of some of the allegations contained in specifications

(b) and (d), respectively. Moreover, the appellant does not dispute on review that

he had a profane outburst in November 2020, as alleged in specification (b), or

that he discouraged subordinates from reporting issues to management officials,

as alleged in specification (d). We have considered the appellant’s other

arguments relating to the charge and specifications, but we find them

unpersuasive. We affirm the administrative judge’s decision to sustain the

unprofessional conduct charge based on her decision to sustain specifications (b)

and (d). IAF, Tab 22, Initial Decision (ID) at 7-16; see, e.g., Burroughs v.

Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (finding that, when

more than one event or factual specification supports a single charge, proof of

one or more, but not all, of the supporting specifications is sufficient to sustain

the charge).

Neither party challenges the administrative judge’s conclusion that the agency did not

prove specifications (a) and (c), and we affirm this conclusion.

¶4 We have considered the appellant’s arguments regarding the administrative

judge’s analysis of his harmful procedural error claims, but we find them

unpersuasive for the reasons described in the initial decision. ID at 16-17; PFR

File, Tab 7 at 16-17.

¶5 In its petition for review, the agency contends that its removal penalty is

entitled to deference and is reasonable. When, as here, the agency’s charge is

sustained, but some of the underlying specifications are not sustained, the

agency’s penalty determination is entitled to deference and only should be

reviewed to determine whether it is within the parameters of reasonableness.

Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996). If the agency’s

penalty is not reasonable, the Board will mitigate only to the extent necessary to

bring it within the parameters of reasonableness, i.e., the Board will apply a

maximum reasonable penalty standard. Id. at 651. An agency’s failure to sustain

all of its supporting specifications may require, or contribute to, a finding that the

agency’s penalty is not reasonable. Id.

¶6 Such is the case here. Indeed, the administrative judge sustained only

portions of two of the four specifications. Coupled with the discrepancies

between the decision letter and the deciding official’s testimony on the relevant

penalty factors, and the ample mitigating factors, which the administrative judge

discussed at length in the initial decision, we find that the removal penalty is not

entitled to deference and is not reasonable. We discern no error with the

administrative judge’s decision to mitigate the removal penalty to a 60-day

suspension for the reasons described in the initial decision.

¶7 Finally, we deny the appellant’s petition to enforce the interim relief order

because the Board’s regulations do not allow for such a petition. PFR File,

Tab 9; Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 20 (2016). We

may instead consider the appellant’s pleading as a challenge to the agency’s

certification of compliance with the interim relief order. Id.; 5 C.F.R.

§ 1201.116(b). In this case, however, because the appellant is receiving a final

Board order on the merits in his favor, the agency’s compliance with the interim

relief order is a moot issue. Elder, 124 M.S.P.R. 12, ¶ 20; Cowart v. U.S. Postal

Service, 117 M.S.P.R. 572, ¶ 6 & n.* (2012).

ORDER

¶8 We ORDER the agency to cancel the removal action, substitute in its place

a 60-day suspension, and restore the appellant to his Ammunition Operations

Supervisor position. See Kerr v. National Endowment for the Arts, 726 F.2d 730

(Fed. Cir. 1984). The agency must complete this action no later than 20 days

after the date of this decision.

¶9 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶10 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶11 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶12 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 3

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

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.

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.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

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

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

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,

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