Opinion

Andrew Ramsey v. Department of the Army

Court: Merit Systems Protection Board
Filed: Mar 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANDREW RAMSEY , DOCKET NUMBER

Appellant, AT-0752-22-0168-I-1

DEPARTMENT OF THE ARMY, DATE: March 19, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Georgia A. Lawrence , Esquire, Atlanta, Georgia, for the appellant.

Aundrea M. Snyder , Esquire, Anniston, Alabama, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained his demotion. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

The agency demoted the appellant from his position as a GS-13 Safety and

Occupational Health Manager to a nonsupervisory GS-12 position based on three

charges. Initial Appeal File (IAF), Tab 4 at 11-13, 78-81. Charge (1) averred

that the appellant failed to adequately perform his supervisory duties regarding

the time and attendance of two subordinates. Id. at 12, 78-79. Charge (2)

concerned the appellant’s alleged unbecoming conduct that gave the appearance

of an improper relationship with a subordinate employee. Id. at 12, 79-80.

Charge (3) concerned the appellant’s lack of candor when asked about his

relationship with the subordinate. Id. at 12-13, 80-81.

After holding the requested hearing, the administrative judge found that the

agency met its burden of proof concerning the charges, nexus, and penalty and

that the appellant failed to meet his burden concerning his affirmative defenses of

sex-based and race-based discrimination and retaliation for equal employment

opportunity (EEO) activity. IAF, Tab 26, Initial Decision (ID) at 3-29. The

appellant has filed a petition for review, in which he challenges virtually all the

administrative judge’s findings. Petition for Review (PFR) File, Tab 3 at 5-13.

The agency has responded in opposition to the petition for review. PFR File,

Tab 5.

Regarding the appellant’s challenges to the administrative judge’s factual

findings, the administrative judge properly evaluated the hearing testimony and

made credibility determinations in accordance with the standards set forth in

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 17-19, 22.

The appellant has not identified a sufficiently sound reason for disturbing these

findings. 2 PFR File, Tab 3 at 6-9; see Haebe v. Department of Justice, 288 F.3d

1288, 1301 (Fed. Cir. 2002) (stating that the Board must defer to an

administrative judge’s credibility determinations when they are based, explicitly

or implicitly, on observing the demeanor of witnesses testifying at a hearing and

may overturn such determinations only when it has “sufficiently sound” reasons

for doing so). The appellant also argues that the administrative judge’s legal

analysis was conclusory and vague — particularly regarding charges (2) and (3)

— because she did not explicitly address what the appearance of an improper

relationship was, to whom the appearance was created, and what statements

lacked candor. PFR File, Tab 3 at 9. We disagree; this information is clearly set

forth in the agency’s charges and thoroughly addressed in the initial decision. 3

IAF, Tab 4 at 79-81; ID at 14-22. The appellant has not shown why we should

disturb the initial decision in this regard. 4 Crosby v. U.S. Postal Service,

In his petition for review, the appellant cites, among other things, Connolly v.

Department of Justice, 766 F.2d 507, 512 (Fed. Cir. 1985) for the proposition that the

Board’s authority to review an initial decision is “plenary.” PFR File, Tab 3 at 6. In

doing so, he ignores the U.S. Court of Appeals for the Federal Circuit’s qualifier: “with

deference of course to the presiding official on any issues of credibility.” Connolly,

766 F.2d at 512.

Regarding the second charge of conduct unbecoming, the Board has held that

unbecoming conduct includes conduct which was improper, unsuitable, or that detracted

from one’s character or reputation. Social Security Administration v. Long,

113 M.S.P.R. 190, ¶ 42 (2010), aff'd, 635 F.3d 526 (Fed. Cir. 2011) and overruled on

other grounds by Department of Health and Human Services v. Jarboe , 2023 MSPB 22.

Although not specifically defined by the administrative judge, she correctly found that

the appellant’s conduct fell within that broad label.

The appellant also suggests — for the first time on review — that a delay by the

agency in proposing discipline for the lax oversight of his subordinates’ time and

attendance shows that the charge was “pretextual.” PFR File, Tab 3 at 7. The Board

generally will not 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. Clay v. Department of the Army, 123 M.S.P.R. 245,

74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative

judge’s findings when she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions on issues of credibility); Broughton v.

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

The appellant also challenges the administrative judge’s findings as to

nexus and penalty. PFR File, Tab 3 at 9-10. He argues that the administrative

judge did not analyze the nexus between his off-duty conduct of having lunch and

going to a motel with a subordinate and the efficiency of the service. 5 Id. To the

extent that the administrative judge’s nexus analysis was incomplete, we

supplement that analysis and find that any error did not prejudice the appellant’s

substantive rights. ID at 22-23. The agency proved that the apparent relationship

negatively affected interactions in the workplace. IAF, Tab 9 at 34-35, 54,

Tab 24, Hearing Recording (testimonies of Safety Specialist, Explosives; Safety

Specialist; and Engineering Technician). Thus, the nexus between the conduct

and the efficiency of the service is clear. See Kruger v. Department of Justice,

32 M.S.P.R. 71, 74 (1987) (stating that an agency may show a nexus linking an

employee’s off-duty misconduct with the efficiency of the service by showing

that the misconduct affects the employee’s or his coworkers’ job performance, or

management’s trust and confidence in the employee’s job performance).

Regarding the penalty, the appellant argues that a demotion is too harsh; however,

his disagreement with the penalty does not demonstrate any legal or factual error

¶ 6 (2016). The appellant has not shown why he could not have raised this argument

below. In any event, the appellant has not shown that, under the circumstances, the

agency’s delay in discovering the time and attendance issues was suspicious or

undermines the agency’s charge in any way.

Although the appellant was on leave at the time of the conduct, he allowed his

subordinate employee not to take leave. IAF, Tab 4 at 80; ID at 14.

by the administrative judge. 6 PFR File, Tab 3 at 10; ID at 23-25; 5 C.F.R.

§ 1201.115.

Lastly, the appellant renews his claims of race-based and sex-based

discrimination and retaliation for EEO activity. PFR File, Tab 3 at 10-13.

Applying the standard set forth by the Board in Savage v. Department of the

Army, 122 M.S.P.R. 612 (2015), the administrative judge found that the appellant

failed to prove by preponderant evidence that a prohibited consideration was a

motivating factor in the agency’s demotion action. ID at 25-29. We find no basis

on which to reverse the administrative judge’s findings on these claims. Because

the appellant did not show that discrimination or retaliation was a motivating

factor in the action, we do not reach the question as to whether he proved that a

prohibited consideration was a but-for cause of the action. Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 30.

Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 7

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

In arguing that the penalty was too harsh, the appellant contends, among other things,

that there was insufficient evidence of an improper relationship with his subordinate to

sustain the lack of candor charge. PFR File, Tab 3 at 10. The administrative judge

found that the appellant’s denial of an improper relationship was unconvincing in the

face of the credible testimony of the agency’s witnesses and the clear facts to the

contrary. ID at 18-19. We discern no reason to disturb the administrative judge’s

credibility findings in this regard. See Haebe, 288 F.3d at 1301. Thus, this argument is

unavailing.

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.

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. 8 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,

132 Stat. 1510.

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