The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JURGEN CARTER, DOCKET NUMBER
Appellant, AT-0714-18-0263-I-1
v.
DEPARTMENT OF VETERANS DATE: February 22, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Bradley R. Marshall , Mt. Pleasant, South Carolina, for the appellant.
Glynneisha Bellamy , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal pursuant to 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 Atlanta 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
The appellant was formerly employed as a GS-5 Medical Support Assistant
with the agency’s Mental Health Service Line’s Homeless Program. Initial
Appeal File (IAF), Tab 5 at 9, 78. His job duties included managing
appointments and coordinating administrative information between staff and
patients. Id. at 73. By letter dated January 22, 2018, the agency proposed to
remove the appellant from his position pursuant to 38 U.S.C. § 714 based on two
charges: (1) unauthorized access of the Computerized Patient Record System
(CPRS); and (2) unauthorized access of the Veterans Information Systems and
Technology Architecture (VISTA). Id. at 13-16. In support of each charge, the
agency set forth one specification stating that the appellant had authority to
access patient records only in the performance of his official duties and assigned
tasks and identifying the dates and times that he accessed a particular patient’s
records without authorization. Id. It indicated that the appellant accessed the
patient’s CPRS records 26 times without authorization and the patient’s VISTA
records 24 times without authorization between May and September 2016. Id.
The appellant did not reply to the proposed removal. Id. at 10. By letter dated
February 5, 2018, the deciding official found that the charges were supported by
substantial evidence and removed the appellant, effective February 9, 2018. IAF,
Tab 5 at 10-12.
The appellant filed a Board appeal challenging his removal and raised
affirmative defenses of discrimination, retaliation, due process violation, harmful
procedural error, and laches. IAF, Tabs 1, 10. After holding a hearing, the
administrative judge issued an initial decision finding that the agency proved its
charges by substantial evidence and that the appellant failed to establish any of
his affirmative defense. IAF, Tab 16, Initial Decision (ID).
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded. PFR File, Tab 3.
3
DISCUSSION OF ARGUMENTS ON REVIEW
We remand the appeal for the administrative judge to provide the parties with an
opportunity to present evidence and argument regarding whether the agency’s
error in reviewing the proposed removal for substantial evidence was harmful.
The agency’s deciding official sustained the appellant’s removal based on
his conclusion that substantial evidence supported the charges. IAF, Tab 5 at 10.
After the initial decision in this case was issued, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) decided Rodriguez v. Department of Veterans
Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), in which it determined that the
agency erred by applying a substantial evidence burden of proof to its internal
review of a disciplinary action taken 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
burden of proof to be applied by the agency. Id. at 1298-1300. The Court
reasoned that, because 38 U.S.C. § 714 requires that an agency’s deciding official
“determine” whether “the performance or misconduct . . . warrants” the action at
issue, the deciding official must use a preponderance of the evidence burden of
proof. Id. at 1297-99. The Federal Circuit’s decision in Rodriguez applies to all
pending cases, regardless of when the events at issue took place. Semenov v.
Department of Veterans Affairs, 2023 MSPB 16, ¶ 22 (stating that the Federal
Circuit’s decision in Rodriguez applies to all pending cases, regardless of when
the events at issue took place); see Lee v. Department of Veterans Affairs,
2022 MSPB 11, ¶ 16 (recognizing that a new precedential Federal Circuit
decision applied to all cases pending with the Board).
The administrative judge and the parties did not have the benefit of
Rodriguez, and therefore were unable to address its impact on this appeal.
Accordingly, we remand this appeal 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
4
the error. Ronso v. Department of the Navy, 122 M.S.P.R. 391, ¶ 14 (2015);
5 C.F.R. § 1201.4(r). The appellant bears the burden of proving his affirmative
defenses by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). On remand,
the administrative judge shall provide the parties with an opportunity to present
additional evidence and argument, including a supplemental hearing if requested
by the appellant, addressing whether the agency’s use of the substantial evidence
standard in the removal decision constituted harmful error.
On remand, the administrative judge should also determine, if applicable, whether
the agency proved by substantial evidence that the penalty of removal was
reasonable.
The administrative judge did not review the reasonableness of the agency’s
penalty by applying the factors set forth in Douglas v. Veterans Administration,
5 M.S.P.R. 280 (1981) (Douglas factors). Rather, he noted that the Board lacked
authority to mitigate the agency’s penalty. ID at 4. At the time of the initial
decision, however, the administrative judge did not have the benefit of the
Federal Circuit’s decision in Sayers v. Department of Veterans Affairs, 954 F.3d
1370, 1379 (Fed. Cir. 2020), in which the Court held that, notwithstanding the
lack of authority to mitigate the penalty, the Board is required to review the
entirety of the decision, including the penalty in section 714 cases. See Connor v.
Department of Veterans Affairs, 8 F.4th 1319, 1325-27 (Fed. Cir. 2021);
Brenner v. Department of Veterans Affairs, 990 F.3d 1313, 1323 (Fed. Cir. 2021).
Accordingly, the Board must apply the Douglas factors in considering the
reasonableness of the penalty, and, if it finds that the agency failed to consider
the Douglas factors or that the penalty the agency imposed is unreasonable, it
must remand the appeal to the agency for redetermination of the penalty. Connor,
8 F.4th at 1326-27. On remand, the administration judge shall permit the parties
to submit additional evidence and argument, including a supplemental hearing if
requested by the appellant, addressing the penalty issue. The administrative
judge shall then review the penalty and determine whether the agency proved by
5
substantial evidence that it applied the relevant Douglas factors and that the
penalty was reasonable.
ORDER
For the reasons discussed above, we remand this appeal to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
As outlined above, the administrative judge shall address whether the agency’s
error in applying the substantial evidence burden of proof to its action was
harmful. See Semenov, 2023 MSPB 16, ¶ 24. If the administrative judge
determines that the agency’s error in applying the incorrect burden of proof was
not harmful, then he shall determine whether the agency proved by substantial
evidence that it applied the relevant Douglas factors and that the penalty was
reasonable. 2 The administrative judge may, if appropriate, incorporate into the
remand decision his prior findings concerning the agency’s proof of its charges
and the appellant’s affirmative defenses of laches, due process violation, and
harmful error. 3 He may also incorporate into the remand decision, if appropriate,
his prior findings regarding status-based discrimination and retaliation for equal
employment opportunity activity, but in doing so, he must apply the analytical
2
If the administrative judge finds that the agency committed harmful error such that the
disciplinary action is not sustained, he need not address the penalty issue.
3
If any argument or evidence adduced on remand affects the administrative judge’s
prior analysis of any issue in this appeal, he should address such argument or evidence
in the remand decision.
6
framework set forth in Pridgen v. Office of Management and Budget, 2022 MSPB
31. 4
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4
Regarding the appellant’s claims of discrimination based on his race, color, sex,
religion, and national origin and his claim of retaliation for exercise of his equal
employment opportunity rights, the administrative judge found that the appellant
presented no evidence to support his status-based discrimination claims and that he
failed to raise even an inference that his removal was in retaliation for his equal
employment opportunity activity. ID at 7-10. After the initial decision was issued, the
Board issued it its decision in Pridgen addressing, the analytical framework for
discrimination and retaliation claims. In light of the administrative judge’s findings
regarding the appellant’s claims, the change in analytical framework articulated in
Pridgen appears not to provide a basis to disturb the initial decision.