The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES H. BOLGER, DOCKET NUMBER
Appellant, PH-0714-18-0342-I-1
v.
DEPARTMENT OF VETERANS DATE: December 18, 2023
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Shaun C. Southworth , Atlanta, Georgia, for the appellant.
Shelly S. Glenn , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal under the provisions of 38 U.S.C. § 714. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to the Northeastern Regional Office for
further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The agency employed the appellant as a GS-07 Supervisory Police Officer.
Initial Appeal File (IAF), Tab 4 at 16. On May 21, 2018, the agency removed
him under the provisions of 38 U.S.C. § 714, based on a charge of conduct
unbecoming a Federal employee. Id. at 16-28. In support of its charge, the
agency alleged that on March 1, 2018, the appellant instructed a subordinate
Police Office to assist him in dragging an incapacitated visitor and, with the
assistance of this subordinate, took hold of and dragged the visitor by his arms
and shoulders approximately 20 to 25 feet away from the entrance to the
Baltimore Veterans Administration (VA) emergency room (ER). Id. at 27.
¶3 The appellant filed a Board appeal, challenging the merits of his removal
and asserting that his removal was the product of race discrimination. IAF,
Tab 1, Tab 13 at 4. After a hearing, the administrative judge issued an initial
decision affirming the removal. IAF, Tab 19, Initial Decision (ID). He found
that the agency proved its charge by substantial evidence. ID at 3-5. He
concluded that, because the agency took its action under 38 U.S.C. § 714, he must
sustain the penalty of removal. ID at 5. The administrative judge did not address
the appellant’s discrimination claim.
¶4 The appellant has filed a petition for review, challenging the
constitutionality of 38 U.S.C. § 714 and arguing that the actions underlying the
charge did not constitute misconduct. Petition for Review (PFR) File, Tab 1.
The agency has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly determined that the agency proved its charge
by substantial evidence.
¶5 Regarding the merits of the charge, although the appellant does not dispute
that he committed the conduct described, he argues that it was not conduct
3
unbecoming under the circumstances. PFR File, Tab 1 at 6-7. We are not
persuaded.
¶6 A charge of conduct unbecoming has no specific elements of proof; it is
established by proving that the employee committed the acts alleged in support of
the broad label. Canada v. Department of Homeland Security, 113 M.S.P.R. 509,
¶ 9 (2010). Conduct is unbecoming if it is improper, unsuitable, or detracting
from one’s character or reputation. Social Security Administration v. Levinson,
2023 MSPB 20, ¶ 20. Under 38 U.S.C. § 714, the Board reviews an agency’s
charge under a substantial evidence standard. 38 U.S.C. § 714(d)(2)(A), (3)(B);
Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290, 1297-98 (Fed. Cir.
2021).
¶7 Briefly and by way of background, a man appeared at the VA Baltimore ER
seeking treatment for a head injury and ER staff denied him care once his
non-veteran status was established. IAF, Tab 12, Hearing Recording at 2:03:10,
2:08:40 (testimony of the appellant). Subsequently, at around 1:45 a.m., the
appellant was called to the ER entrance to assist a subordinate officer who had
found this same man, intoxicated, lying unresponsive on the ground. Id.
at 2:02:30, 2:08:30 (testimony of the appellant). After unsuccessfully attempting
to rouse the man, the appellant, assisted by the subordinate officer, took him
under his arms and dragged him away from the hospital entrance. Id. at 2:06:30
(testimony of the appellant). The appellant then called dispatch to get an
emergency vehicle from the University of Maryland Medical Center to transport
the man there for treatment. Id. at 2:09:05 (testimony of the appellant).
¶8 The administrative judge found that the appellant’s conduct was
unbecoming in several respects. He reasoned that the appellant’s behavior was
contrary to the VA Police Officer Standards of Conduct, which require officers to
“render courteous assistance to patients, visitors and employees at all times.” ID
at 4; IAF, Tab 5 at 5. Second, he found that the appellant’s actions violated
agency Standard Operating Procedures, which provided that, if an officer
4
encountered an individual who was incapacitated due to drugs or alcohol, the
individual “should be transported to Emergency Room/Urgent Care for
evaluation.” ID at 4-5; IAF, Tab 5 at 13-14. For the same reasons, the
administrative judge found that the appellant’s instructions to his subordinate
officer to drag the incapacitated man away from the emergency room were
improper. ID at 5.
¶9 On petition for review, the appellant argues that no reasonable person could
interpret his actions as discourteous. PFR File, Tab 1 at 6. We disagree. The
appellant’s act of dragging an incapacitated individual by his arms and shoulders
could be reasonably viewed as not only discourteous, but as callous and
degrading. Further, discourteous does not even begin to describe the dangerous
act of removing such an individual from the nearest medical care. The appellant
also argues that the administrative judge failed to cite any evidence to support his
finding that the individual in question was incapacitated. PFR File, Tab 1 at 6.
We discern no error in the administrative judge’s logical conclusion that the
individual’s lying on the ground unresponsive and having to be physically moved
by the officers was evidence of his incapacity. ID at 4-5.
¶10 The appellant further argues that he was not in violation of the VA Standard
Operating Procedures because those procedures do not specify to which ER an
incapacitated individual must be transported. PFR File, Tab 1 at 8; IAF, Tab 5
at 14. Although the appellant’s interpretation might arguably be supported by a
rigid reading of the provision, the Standard Operating Procedures pertain to the
conduct of operations at VA hospitals. Therefore, we find that the better
interpretation is that it calls for transportation to the VA ER. In any event, the
agency did not reference the Standard Operating Procedures in its proposed
removal. IAF, Tab 4 at 18-20, 27-28. A conduct unbecoming charge does not
require proof of specific intent. Cross v. Department of the Army, 89 M.S.P.R.
62, ¶¶ 9-10 (2001). Therefore, even if the appellant did not technically violate
these procedures, we would still find the agency proved its charge because the
5
appellant’s actions were unsuitable and detracted from his character and
reputation. See Levinson, 2023 MSPB 20, ¶ 20.
¶11 Finally, the appellant argues that it would have been unreasonable to expect
him to take this individual back inside the hospital where he had just been denied
treatment. PFR File, Tab 1 at 6-7. He asserts that the individual’s alleged
incapacity is a red herring that changed nothing because “the VA was still
refusing treatment.” PFR File, Tab 1 at 7. Once again, we disagree. This
individual’s sudden incapacity changed the circumstances; when he first sought
and was denied emergency room treatment, he was ambulatory and acting on his
own accord, but when the appellant came across him later, he was helpless and in
urgent need of medical attention. Given this material change in condition, there
is no reason to think that the VA hospital would have continued to refuse him
treatment. In fact, according to agency policy, the hospital would at least have
given him a medical evaluation notwithstanding his non-veteran status. IAF,
Tab 5 at 14.
¶12 We are mindful that a law enforcement officer’s duties involve making
quick decisions under difficult circumstances, and that it is easier to judge those
decisions in hindsight than it is to make them in real time. However, for the
reasons stated above, we agree with the administrative judge that the agency
proved that the judgments and actions at issue in this case constituted conduct
unbecoming. ID at 3-5. This is particularly so in light of the Board’s substantial
evidence standard of review for this 38 U.S.C. § 714 removal. See 38 U.S.C.
§ 714(d)(2)(A), (3)(B). Substantial evidence is “[t]he degree of relevant evidence
that a reasonable person, considering the record as a whole, might accept as
adequate to support a conclusion, even though other reasonable persons might
disagree.” 5 C.F.R. § 1201.4(p). It is a lower standard of proof than
preponderant evidence. 5 C.F.R. § 1201.4(p).
6
We remand the appeal for the administrative judge to provide the parties with an
opportunity to present evidence regarding whether the agency’s error in reviewing
the proposed removal for substantial evidence was harmful.
¶13 The agency’s deciding official sustained the appellant’s removal based on
her conclusion that substantial evidence supported the charge of conduct
unbecoming. IAF, Tab 4 at 18. After the initial decision in this case was issued,
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decided
Rodriguez, 8 F.4th at 1296-1301, in which it determined that the agency erred by
applying a substantial evidence burden of proof to its internal review of a
disciplinary action under 38 U.S.C. § 714. The court found that substantial
evidence is the standard of review to be applied by the Board, not the agency. Id.
at 1298-1300. Instead, the agency’s deciding official must use a preponderance
of the evidence burden of proof to “determine[]” whether “the performance or
misconduct . . . warrants” the action at issue. 2 Id. at 1298-1301 (quoting
38 U.S.C. § 714(a)(1)). The holding in Rodriguez applies to all cases pending
with the Board, regardless of when the events at issue took place. Semenov v.
Department of Veterans Affairs, 2023 MSPB 16, ¶ 22.
¶14 Here, in the decision letter, the deciding official concluded that the charge
and associated specifications “were supported by substantial evidence.” IAF,
Tab 4 at 18. Although both parties requested the deciding official as a witness,
the administrative judge denied these requests on the basis that “her expected
testimony was not relevant to any of the issues in this 0714 appeal.” IAF, Tab 11
at 6, Tab 13 at 4-5, Tab 17 at 2. The deciding official did not testify at the
hearing and so there was no additional testimony addressing the burden of proof
the agency applied in sustaining the appellant’s removal or suggesting that the
charges were sustained based on more than substantial evidence.
2
Preponderance of the evidence is “[t]he degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
7
¶15 The administrative judge and the parties did not have the benefit of
Rodriguez, and therefore were unable to address its impact on the appeal. We
therefore must remand this case for adjudication of whether the agency’s
application of the substantial evidence standard of proof was harmful error. See
Semenov, 2023 MSPB 16, ¶ 22. A harmful error is an error by the agency in the
application of its procedures that is likely to have caused the agency to reach a
different conclusion from the one it would have reached in the absence or cure of
the error. Id., ¶ 23; 5 C.F.R. § 1201.4(r). The appellant bears the burden of
proving his affirmative defenses by preponderant evidence. Semenov,
2023 MSPB 16, ¶ 23; 5 C.F.R. § 1201.56(b)(2)(i)(C). On remand, the
administrative judge shall provide the parties with an opportunity to present
evidence and argument, including holding a supplemental hearing, addressing
whether the agency’s use of the substantial evidence standard in the removal
decision constituted harmful error. Semenov, 2023 MSPB 16, ¶ 24. The
administrative judge should approve the deciding official to testify on this issue if
requested by either party. 5 C.F.R. § 1201.41(b)(8), (10) (recognizing the
authority of administrative judges to rule on, and order the appearance of,
witnesses). The administrative judge should then address this affirmative defense
in his remand initial decision.
On remand, the administrative judge should adjudicate the appellant’s affirmative
defense of race discrimination.
¶16 We note that the appellant raised a race discrimination claim in his initial
filing. IAF, Tab 1 at 15. The appellant did not mention this claim in his
prehearing submission, did not object to its absence from the prehearing
conference summary, and did not raise it on petition for review. IAF, Tab 13
at 4. The Board has recently affirmed the general proposition that, when an
appellant raises an affirmative defense, the administrative judge must address the
affirmative defense in a close of record order or prehearing conference summary.
Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 10, 17 n.7. Here, the
8
administrative judge did not do so. On remand, the administrative judge should
provide the appellant with notice of his burden to prove this affirmative defense
and an opportunity to meet that burden, including at a supplemental hearing, if
requested by the appellant.
On remand, the administrative judge should apply the Douglas factors and review
the agency’s penalty selection. 3
¶17 The administrative judge found that because the agency proved the charge
by substantial evidence, the removal penalty must be affirmed. ID at 5. In the
removal decision letter, the deciding official did not reference the Board’s
decision in Douglas, or otherwise indicate that she considered the factors set forth
in Douglas in reaching her decision. IAF, Tab 4 at 18-20. Again, the deciding
official did not testify during the hearing. So, it is not clear from the record
whether she considered any of the Douglas factors in connection with her
decision to remove the appellant.
¶18 After the initial decision was issued in this case, the Federal Circuit issued
its decision in Connor v. Department of Veterans Affairs , 8 F.4th 1319 (Fed. Cir.
2021). In Connor, the Federal Circuit determined that the agency and the Board
must consider and apply the Douglas factors in selecting and reviewing the
penalty under 38 U.S.C. § 714. Connor, 8. F4th at 1325-26; see Semenov,
2023 MSPB 16, ¶¶ 44-50 (stating that, consistent with the Federal Circuit’s
decision in Connor, 8 F.4th at 1325-26, the agency and the Board must apply the
Douglas factors in reviewing the penalty in an action taken under 38 U.S.C.
§ 714).
¶19 The administrative judge and the parties did not have the benefit of Connor,
and thus were unable to address its impact on this appeal. Therefore, remand is
also required regarding this issue. Connor, 8 F.4th at 1326-27. On remand, the
administrative judge should permit the parties to submit additional evidence and
3
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
provided a nonexhaustive list of factors relevant to penalty determinations.
9
argument on the penalty issue, to include holding a supplemental hearing on the
penalty issue at which the deciding official is permitted to testify, if requested.
See Semenov, 2023 MSPB 16, ¶ 50. In reviewing the penalty, the administrative
judge should determine whether the agency proved by substantial evidence that it
properly applied the relevant Douglas factors and whether the agency’s penalty
selection was reasonable and, if not, remand the appellant’s removal to the
agency for a new removal decision. 4 Id. (citing Connor, 8 F.4th at 1326-27;
Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1375-76, 1379 (Fed.
Cir. 2020)). If the appellant does not prevail on his affirmative defense on
remand, and the administrative judge affirms the agency’s choice of penalty, the
administrative judge may adopt his prior findings concerning the agency’s
charges in his remand initial decision.
4
On petition for review, the appellant challenges the constitutionality of 5 U.S.C.
§ 714, arguing that it violates his right to due process because the Board’s substantial
evidence standard of review is too low, the standard is unworkable as a practical matter,
and the statute does not authorize the Board to mitigate the penalty. PFR File, Tab 1
at 5-6. The Federal Circuit has held that section 714 “requires the Board to review for
substantial evidence the entirety of the VA’s removal decision—including the penalty—
rather than merely confirming that the record contains substantial evidence that the
alleged conduct leading to the adverse action actually occurred.” See Sayers v.
Department of Veterans Affairs, 954 F.3d 1370, 1379 (2020). The Board’s adversarial
hearing process and review of the penalty in a section 714 action for substantial
evidence satisfies the requirements of due process. Rodriguez, 8 F.4th at 1305-06.
Therefore, we are unpersuaded by the appellant’s due process arguments.
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ORDER
¶20 For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.