Opinion

William Doyle v. Department of the Army

Court: Merit Systems Protection Board
Filed: Apr 4, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.7%

finding that the Board may overturn an administrative judge’s demeanor-based credibility findings only when it has “sufficiently sound” reasons for doing so

How later courts described this case

finding that the Board may overturn an administrative judge’s demeanor-based credibility findings only when it has “sufficiently sound” reasons for doing so
identifying five evidentiary factors for determining whether an agency proved an employee made a threat under the applicable reasonable person standard

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM DOYLE, DOCKET NUMBER

Appellant, DE-0752-21-0204-I-2

DEPARTMENT OF THE ARMY, DATE: April 4, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bobby R. Devadoss , Esquire, Claire Ocana , Esquire, and Morgan

Valasquez , Esquire, Dallas, Texas, for the appellant.

Eric J. Teegarden , Esquire, Fort McCoy, Wisconsin, 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

affirmed his removal. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 the petitioner has not

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

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

address an additional due process claim, we AFFIRM the initial decision.

BACKGROUND

The appellant was removed from his position as Alcohol & Drug Control

Coordinator for the Army Reserve Command at Fort Douglas in Salt Lake City,

Utah, for “sending an electronic mail (email) message to multiple recipients that

included language of a threatening nature and for being on duty while under the

influence of alcohol/drugs, to a degree which would interfere with proper

performance of duty or would be prejudicial to the maintenance of discipline.”

Doyle v. Department of the Army, MSPB Docket No. DE-0752-21-0204-I-1,

Initial Appeal File (IAF), Tab 7 at 13. The agency specifically alleged that the

appellant sent an email to approximately 7,500 employees and contractors within

the 76th Operation Response Command in which he said “[y]ou are traitors to the

US Constitution and God. You will die.” Id. The agency further alleged that on

the same day, the appellant had telephone conversations both with his first-level

supervisor and with local police in which he admitted sending the email and

appeared to be intoxicated because he was slurring his words. Id. at 13, 96. As a

result of the appellant’s email, “tenant organizations on Fort Douglas released

their workforces early” and “Fort Douglas increased its security posture.”

Id. at 14.

The appellant filed this appeal. IAF, Tab 1 at 4, 6. After holding a

hearing, the administrative judge issued an initial decision affirming the removal.

Doyle v. Department of the Army, MSPB Docket No. DE-0752-21-0204-I-2,

Refiled Appeal File (RAF), Tab 7, Initial Decision (ID) at 1, 17. She found that

the agency proved its narrative charge by preponderant evidence. ID at 5-7.

She rejected the appellant’s implied arguments that the agency violated his due

process rights. ID at 12-16; e.g., IAF, Tab 7 at 24-26. She concluded that the

agency proved a nexus between the appellant’s misconduct and the efficiency of

the service, that the deciding official properly considered the relevant Douglas

factors, and that the penalty of removal was within the limits of reasonableness. 2

ID at 7-12.

The appellant has filed a petition for review, and the agency has filed a

response. Petition for Review (PFR) File, Tabs 1, 3. On review, the appellant

challenges the administrative judge’s finding that the agency met its burden of

proof concerning the charge and the reasonableness of the penalty. PFR File,

Tab 1 at 6-9, 13-15. He argues that the administrative judge erred in crediting the

testimony of both his first-level supervisor and the deciding official. Id. at 11-13.

He also reasserts most of his due process claims and raises new ones. PFR File,

Tab 1 at 9-11, 14-15.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly sustained the charge.

The agency proposed and ultimately removed the appellant based on a

single, unlabeled narrative charge. IAF, Tab 7 at 11-15, 87-92. It generally

described his misconduct as sending an email with “threatening language” and

being under the influence of alcohol such that it could interfere with his work

performance or the maintenance of discipline. Id. at 13, 87. The administrative

judge found that the agency proved its charge, including that the appellant sent

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.

the email in question while working and was intoxicated when he did so.

ID at 5-7. She also concluded that the appellant’s email caused the agency to

take certain increased security measures and caused tenant organizations

to release their full-time staff early on the day in question. ID at 3, 7; IAF,

Tab 7 at 22.

The parties do not dispute on review that the appellant sent the email while

working. ID at 6; PFR File, Tab 1 at 7. However, the appellant appears to

disagree that the agency’s increased security measures were sufficient to justify

its description of his email as threatening. ID at 7; PFR File, Tab 1 at 14.

He concedes that he had “one drink during lunch prior to sending his email” and

that he was still under the influence of alcohol when he spoke to the police 1 hour

after sending the email. Hearing Transcript (HT) at 13, 16 (testimony of the

appellant); IAF, Tab 7 at 97; PFR File, Tab 1 at 7. However, he disagrees that, as

charged by the agency, he was intoxicated such that he could not perform his job

duties. PFR File, Tab 1 at 6-7. He also argues that the agency failed to prove

that his email interfered with the maintenance of discipline. Id. at 8.

We turn first to the appellant’s arguments that the agency’s security

measures do not reflect that his email was threatening, and, relatedly, that the

agency failed to prove his email was prejudicial to the maintenance of discipline.

PFR File, Tab 1 at 6-7, 11. Although not framed by the appellant as such,

we find that these arguments go to the interpretation of the agency’s charge.

An agency is not required to affix a label to a charge but may simply describe

actions that constitute misbehavior in narrative form in its charge letter. Otero v.

U.S. Postal Service, 73 M.S.P.R. 198, 202-03 (1997). Hypertechnical common

law pleading is not Board practice, and so an agency is not required to narrowly

label its charge with magic words for it to be sustained by the Board. Id. at 203.

Here, the administrative judge appropriately found that the gravamen of the

agency’s charge was that the appellant sent the email at issue and was impaired

by alcohol during the workday. ID at 6. Accordingly, she found that the agency

was not required to prove that the appellant threatened his coworkers under the

Metz test, and instead sustained the specification because the agency proved the

facts outlined in its proposal. ID at 7 (citing Metz v. Department of the Treasury,

780 F.2d 1001, 1002-04 (Fed. Cir. 1986) (identifying five evidentiary factors for

determining whether an agency proved an employee made a threat under the

applicable reasonable person standard)). We find no error in this respect.

The mere fact that an agency describes an appellant’s conduct as “threatening” in

its narrative charge does not require the application of Metz. See Otero,

73 M.S.P.R. at 201-04 (declining to apply the Metz test to a charge of improper

conduct notwithstanding the agency’s description of the appellant’s conduct as

“threatening” in the narrative accompanying the charge); see also Pinegar v.

Federal Election Commission, 105 M.S.P.R. 677, ¶ 28 (2007) (noting that the

agency charged the appellant with inappropriate remarks, not with making a

threat, and therefore, it was not required to prove whether the conduct constituted

a threat); Wiley v. U.S. Postal Service, 102 M.S.P.R. 535, ¶¶ 2, 10-11 (2006)

(finding that the agency was not required to prove that the appellant’s threatening

remarks constituted a threat under the Metz test when the agency charged him

with improper conduct in violation of its zero tolerance policy based on

threatening remarks, which he made in the presence of two coworkers), aff’d per

curiam, 218 F. App’x 1001 (Fed. Cir. 2007). Here, the agency specified in its

proposed removal that the appellant sent the email, its contents, the date it was

sent, and its recipients. IAF, Tab 7 at 87. We discern no basis to disturb the

administrative judge’s unchallenged determination that the agency proved these

facts; thus, she did not err in finding that the agency proved its narrative charge.

ID at 5-6.

In any event, the appellant’s argument regarding the agency’s security

response is unavailing. According to the appellant, the agency was already

considering increasing security. PFR File, Tab 1 at 13. The record contradicts

the appellant’s argument. During the hearing, the Fourth Protection

Noncommissioned Officer-in-Charge (NCOIC) testified that he was considering

increasing security at the Fort Douglas gates due to the events of January 6, 2021,

but decided it was unnecessary due to other precautions in place. HT at 78-79,

83-85 (testimony of the NCOIC). However, he testified that the General in

charge of Fort Douglas ordered that military police be present at the gates in

response to the appellant’s email. HT at 78-79 (testimony of the NCOIC).

The appellant has not challenged the veracity of the NCOIC’s testimony. Thus,

the appellant’s assertion that the agency did not increase security in response to

his statement to approximately 7,500 employees, “you will die,” is unsupported.

IAF, Tab 7 at 97.

We similarly reject the appellant’s argument that the agency did not prove

that he was under the influence of alcohol to a degree which would interfere with

the proper performance of duty. PFR File, Tab 1 at 7-8. Again, we note that the

agency used a narrative charge. When, as here, the agency’s charge contains a

narrative explanation for the basis of its action, the agency may sustain its charge

by proving one or more of the incidents described therein; proof of every incident

is not required. Otero, 73 M.S.P.R. at 204. In any event, when an agency

provides two alternative descriptions of a charge, it need only prove one of them.

Jenkins v. Department of the Treasury, 104 M.S.P.R. 345, ¶ 9 (citing Lachance v.

Merit Systems Protection Board, 147 F.3d 1367, 1372-74 (explaining that when

an agency “set forth two alternative characterizations” of a charge, proof of one

of those alternatives may be sufficient to sustain the charge)), aff’d per curiam,

244 F. App’x 349 (Fed. Cir. 2007).

Here, the agency alleged that the appellant was “under the influence . . . to

a degree which would interfere with proper performance of duty, or would be

prejudicial to the maintenance of discipline.” IAF, Tab 7 at 87. 3 Thus,

To the extent the appellant is arguing on review that the agency failed to prove he was

intoxicated, or that his intoxication caused him to send out the email, we are not

persuaded. PFR File, Tab 1 at 7-8. In responding to the proposed removal, the

appellant sought to excuse his behavior, in part, by indicating that he had been drinking.

the agency could prove misconduct based either on the appellant’s potential

inability to perform his duties or the potential prejudice to the maintenance of

discipline. As discussed above, the agency proved the latter, and thus the charge.

The administrative judge properly found that the agency did not have to

prove a particular level of response to show that the appellant’s conduct “would

be prejudicial to the maintenance of discipline.” ID at 7. We note that

“discipline” is a broad term, which the dictionary defines as “control gained by

enforcing obedience or order” and “orderly.” Merriam-Webster’s Collegiate

Dictionary 330 (10th ed. 2002). The appellant’s intoxication clearly impacted the

state of order, because his email caused tenant agencies on Fort Douglas to

release employees early as a safety precaution. IAF, Tab 7 at 14, 22.

Although it was not necessary for the agency to prove the alternative basis

of its charge, we conclude it did so. The appellant’s intoxication at work plainly

interfered with his job duties as the Alcohol & Drug Control Coordinator, such as

training individuals who conduct drug and alcohol testing. HT at 8 (testimony of

the appellant). As the deciding official reasonably explained, “[t]he [Alcohol and

Drug Coordinator] should be a person who [is not intoxicated while on duty].

IAF, Tab 7 at 25. He characterized his drinking as “a terrible decision,” and described

his efforts to “ensure that nothing like this happens again,” including getting “rid of all

the alcohol in [his] house.” Id. Further, he essentially admitted during his hearing

testimony that he was under the influence of alcohol when he sent the email. HT

at 12-13 (testimony of the appellant). An agency may rely on an appellant’s admissions

in support of its charge, and an appellant’s admission to a charge can suffice as proof of

the charge without additional proof from the agency. Cole v. Department of the Air

Force, 120 M.S.P.R. 640, ¶ 9 (2014). Here, the appellant did not attempt to recant his

admissions or claim they were involuntary. Further, his testimony is consistent with his

prior admission. Therefore, we find his admission and testimony are preponderant

evidence that his use of alcohol caused him to send out the email. See id., ¶¶ 9-11

(finding that an agency proved an appellant used marijuana when he made numerous

unrecanted admissions that he did not claim were coerced or otherwise involuntary). In

light of this determination, we decline to address the appellant’s argument that the

administrative judge should not have credited the testimony of the appellant’s first-level

supervisor as to the appellant’s slurred speech and “tirade” during a conversation

following the email. PFR File, Tab 1 at 8; ID at 6-7; HT at 33-34 (testimony of the

appellant’s first-level supervisor).

There’s a lot of trust we place in . . . the [Alcohol and Drug Coordinator] as well

to adhere to the same standards we would expect of service members[.]”

HT at 53 (testimony of the deciding official).

Therefore, the appellant has not provided a reason to disturb the

administrative judge’s finding that the agency proved the essence of its charge.

The administrative judge properly rejected the appellant’s due process arguments.

The appellant also challenges the penalty of removal on due process

grounds. Specifically, he argues that (1) the deciding official consulted with

“Legal and LMER” without informing the appellant, (2) the agency did not

specify which infraction on the table of penalties covered the appellant’s

misconduct, and (3) the deciding official said he relied on the appellant’s lack of

trust in his coworkers although the issue of trust was not mentioned in the

proposed removal letter. PFR File, Tab 1 at 9-11, 14-15. The appellant also

alleges that the agency never provided him with copies of coworkers’ complaints,

social media posts, and media requests concerning the email, despite the fact that

both the proposal and final decision letter referenced them in support of the

penalty of removal. Id.; IAF, Tab 7 at 14, 22. The administrative judge rejected

these arguments below, reasoning that the appellant had a meaningful opportunity

to respond to all of the evidence the deciding official considered. 4 ID at 12-16.

A deciding official violates an employee’s due process rights when he

relies upon new and material ex parte information as a basis for his decisions on

either the merits of a proposed charge or the penalty to be imposed. Ward v. U.S.

Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal

Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999). While

confirming or clarifying information is not new, previously undisclosed opinions

The administrative judge found the appellant failed to prove that the deciding official

considered the U.S. Army Reserve’s decision to permanently revoke the appellant’s

access to its classified and unclassified networks. ID at 15-16; RAF, Tab 2 at 9-14.

The appellant does not challenge this determination on review, and we discern no basis

to disturb it.

on the evidence are. Johnson v. Department of the Air Force, 50 F.4th 110,

115-16 (Fed. Cir. 2022)

The appellant has not identified any new and material evidence the

deciding official purportedly obtained in conversations with “Legal and LMER.”

See 5 C.F.R. § 1201.115(a)(2) (“A petitioner who alleges that the judge made

erroneous findings of material fact must explain why the challenged factual

determination is incorrect and identify specific evidence in the record that

demonstrates the error.”). Nor has he challenged the veracity of the deciding

official’s testimony that his conversation with “Command’s attorney” did nothing

more than confirm that removal was not “outside of [his] bounds as the deciding

official.” HT at 52-53 (testimony of the deciding official).

Similarly, the appellant has not shown that the agency’s failure to specify

an offense in the table of penalties and explicitly reference his lack of trust in the

proposal letter were new and material evidence. Regarding the agency’s table of

penalties, the appellant appears to be reraising his argument from below that

he was not able to respond fully to the proposed removal because the agency did

not label its charge. 5 HT at 26-27 (testimony of the appellant); IAF, Tab 7 at 24,

27-28. The administrative judge found no due process violation, and we agree.

ID at 13-14. An agency denies an appellant due process when its deciding

official relies, without notifying the appellant, on the recommended penalty in its

table of penalties for an offense with which he was not charged. Jenkins v.

Environmental Protection Agency, 118 M.S.P.R. 161, ¶¶ 9-12 (2012). However,

the mere lack of a charge label is not a violation of due process. See Otero,

73 M.S.P.R. at 202.

The appellant also suggested below that the agency erred in failing to provide him

with a copy of its table of penalties. IAF, Tab 7 at 27-28. The administrative judge

was not persuaded, noting that the table was publicly available online. ID at 14. We

further observe that the appellant submitted a copy with his prehearing submissions

below. RAF, Tab 2 at 26-33. The appellant does not contest the determination that he

could have viewed the table of penalties at any time on the internet, and we discern no

basis to disturb it.

Consistent with the agency’s decision to use a narrative charge, the

deciding official testified that he generally considered the agency’s table of

penalties but did not “know that there was one [offense that he] considered the

most.” HT at 64 (testimony of the deciding official); IAF, Tab 7 at 22, 24. The

appellant has not identified any evidence that the deciding official considered an

offense that was inconsistent with the agency’s narrative charge. Nor did he

testify that he viewed the narrative charge as correlating with a particular offense

on the agency’s table. Therefore, the appellant has not stated a basis to grant

review.

We likewise find that the deciding official’s reliance on the appellant’s

lack of trust in his coworkers did not violate his due process rights. The

appellant’s attorney made this due process argument in his closing argument;

however, the administrative judge did not address it. HT at 91-92 (closing

argument of the appellant’s attorney). Therefore, we modify the initial decision

to do so. An employee is “not deprived of due process by not being advised in

advance that the deciding official might draw [an] inference from the nature of

the charged conduct.” Harding v. U.S. Naval Academy, 567 F. App’x 920,

925-26 (Fed. Cir. 2014). 6 The agency’s proposal notice quoted the appellant’s

email, in which he identified the approximately 7,500 coworkers receiving it as

“traitors.” IAF, Tab 7 at 87, 97. In making his penalty determination, the

deciding official observed that the appellant “has made it clear that the does not

trust [his coworkers] and [they] are traitors, a quite slanderous accusation.” Id.

at 23. Similarly, the deciding official testified that the use of the word “traitor”

in the proposal notice “signifie[d] some lack of trust” by the appellant in his

coworkers. HT at 62 (testimony of the deciding official). We find that the

agency did not violate the appellant’s due process because the deciding official

The Board may rely on unpublished decisions of the U.S. Court of Appeals for the

Federal Circuit if it finds the court’s reasoning persuasive, as we do here. See

Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).

logically inferred from the use of the word “traitors” that the appellant did not

trust his coworkers.

Finally, the appellant argued below and on review that the agency failed to

provide him with evidence of coworkers’ complaints, social media posts,

or media requests concerning his email. HT at 91 (closing argument of the

appellant’s attorney); PFR File, Tab 1 at 9-10. The administrative judge rejected

this argument because there was no evidence that the deciding official received

those documents himself. ID at 14-15; HT at 64 (testimony of the deciding

official). She properly concluded that the appellant knew the information would

be considered and had the opportunity to respond before he was removed.

ID at 15; see Stone, 179 F.3d at 1377. Specifically, she quoted the proposal

notice, which stated “[y]our email has appeared on social media.” ID at 15

(quoting IAF, Tab 7 at 88).

In responding to the proposal, the appellant acknowledged that it stated that

his email “may have been shared online,” but defended his actions on the basis

that he had not shared the email or seen any online posts containing it.

IAF, Tab 7 at 28. He did not request any further materials. Id. The Board has

found that there is no due process violation when, as here, the appellant fails to

request the underlying materials on which the agency relies in reaching the

removal decision. McNab v. Department of the Army, 121 M.S.P.R. 661, ¶ 18

(2014). For the same reason, the appellant cannot claim that the agency’s failure

to provide evidence of complaints, social media posts, or media requests

constituted harmful error. 7 See id., ¶¶ 16-17 (finding no harmful error because

Once the Board determines that the ex parte communications did not violate the

appellant’s due process rights, it must consider whether the agency’s failure to specify

in its proposed removal a charge in the table of penalties, that it was considering the

appellant’s lack of trust in his coworkers, and that the deciding official had a

conversation with “Legal and LMER” constituted harmful error. Ward, 634 F.3d

at 1282. The appellant has not pointed to any rule the agency violated, and we are not

aware of one. Moreover, there is no suggestion that the agency would reach a different

conclusion in the absence of such error. Stephen v. Department of the Air Force,

47 M.S.P.R. 672, 685 (1991) (explaining that the Board will reverse the action for

the appellant did not request the materials underlying his removal). Therefore,

we affirm the administrative judge’s finding that the agency’s failure to provide

these documents did not amount to a due process violation.

The administrative judge properly found that the agency established a nexus

between the appellant’s misconduct and the efficiency of the service.

The administrative judge concluded that there was a nexus between the

appellant’s misconduct and the efficiency of the service. ID at 7-8.

The appellant avers that the agency failed to prove that his removal promotes the

efficiency of the service for a variety of reasons, including for example that

“there is no tangible evidence that this event caused the Agency to need to

increase security.” PFR File, Tab 1 at 14-15. There is a presumption of nexus

when the misconduct occurred in part at work. Campbell v. Department of the

Army, 123 M.S.P.R. 674, ¶ 24 (2016) (citing Parker v. U.S. Postal Service,

819 F.2d 1113, 1116 (Fed. Cir. 1987)). As the administrative judge found and the

appellant does not dispute, the appellant’s sustained misconduct occurred while

he was on duty and involved the use of Government equipment. ID at 8.

Therefore, we find the appellant’s arguments without merit and affirm the

administrative judge’s finding that the agency proved nexus.

The administrative judge properly found that the penalty was within the limits of

reasonableness.

The administrative judge found that the deciding official properly

considered the relevant Douglas factors before concluding that removal was

appropriate. ID at 8-11. She therefore deferred to his penalty selection. ID at 8.

After reviewing the deciding official’s penalty analysis, the administrative judge

harmful error only when the evidence and argument of record shows that the procedural

error was likely to have caused the agency to reach a conclusion different from the one

it would have reached in the absence or cure of the error). Nor did the fact that the

deciding official did not review the social media posts constitute harmful error because

the appellant has not identified any rule requiring the deciding official to review the

documents, and there is no suggestion that he would have reached a different conclusion

had he either reviewed the documents or not referenced them in the removal decision.

See Stephen, 47 M.S.P.R. at 685.

concluded that a removal did not exceed the tolerable limits of reasonable.

ID at 8-12. The appellant again argues that the penalty of removal is

unreasonable. PFR File, Tab 1 at 13-15; RAF, Tab 2 at 4, Tab 4 at 4.

When, as here, all of the agency’s charges have been sustained, the Board

will review the agency-imposed penalty only to determine if the agency

considered all of the relevant factors and exercised management discretion within

the tolerable limits of reasonableness. Davis v. U.S. Postal Service, 120 M.S.P.R.

457, ¶ 6 (2013). 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. The Board will modify the penalty only when it finds that the

deciding official failed to weigh the relevant factors or that the penalty the

agency imposed clearly exceeded the bounds of reasonableness. Davis,

120 M.S.P.R. 457, ¶ 6.

The administrative judge concluded that the deciding official properly

considered the relevant Douglas factors based on his written analysis and

testimony. ID at 8-11. She credited the deciding official’s testimony concerning

the severity of the appellant’s misconduct and its relation to his job duties.

ID at 9-10. Specifically, she credited the deciding official’s testimony that the

appellant, as the Alcohol & Drug Control Coordinator, should not have been

intoxicated on duty. ID at 9; HT at 53 (testimony of the deciding official).

As discussed above and contrary to the appellant’s suggestion, the agency

increased its security because of his email. HT at 82-85 (testimony of the

NCOIC). Further, tenant organizations released their full-time staff early on the

day in question. IAF, Tab 7 at 22.

The administrative judge found that organizations with whom the appellant

worked expressed concern about working with him and that his email appeared on

social media, thereby rejecting the appellant’s argument that his email did not

create notoriety for the agency. ID at 16; HT at 39, 42-43 (testimony of the

Human Resources Officer), 54-55 (testimony of the deciding official); PFR File,

Tab 1 at 15. Although the appellant argues that the two most similar charges on

the agency’s table of penalties do not list removal as a penalty for a first offense,

the table is only one factor to be considered in assessing the reasonableness of a

penalty. PFR File, Tab 1 at 15; see Phillips v. Department of the Interior,

95 M.S.P.R. 21, ¶ 17 (2003), aff’d, 131 F. App’x 709 (Fed. Cir. 2005). This is

especially true when, as here, the agency has designated the table as a “guide to

discipline” and allows “[d]eviations” for matters such as when the misconduct is

“especially serious.” RAF, Tab 2 at 26; see Phillips, 95 M.S.P.R. 21, ¶ 17

(concluding that it was within a deciding official’s discretion to apply the listed

misconduct that most nearly resembled the circumstances of the appellant’s case

given that the agency described the table of penalties as a “[g]uide” and “general

framework within which supervisors may exercise sound judgment in dealing

with the particular circumstances”).

The administrative judge found that the deciding official made

an independent decision to remove the appellant. ID at 11. She acknowledged

that the deciding official stated that the penalty of removal was too severe in

an initial email to an agency Human Resources Officer approximately 3 weeks

before he issued the removal decision. Id.; RAF, Tab 2 at 24. However,

she credited the deciding official’s testimony that he prematurely expressed that

opinion before reviewing the Douglas factors and that he concluded that removal

was appropriate after conducting that analysis. ID at 11; HT at 51 (testimony of

the deciding official).

On review, the appellant argues that the administrative judge erred in

crediting the deciding official’s testimony because he testified at one point that

he could not consider the appellant’s intent behind the email but, according to the

appellant, contradicted himself when he later testified that he considered the word

“traitor” to signify a lack of trust. PFR File, Tab 1 at 12. He argues that the

deciding official’s “contradictory, noncommittal responses” draw his credibility

into question. Id. The Board must give “special deference” to an administrative

judge’s demeanor-based credibility determinations, “[e]ven if demeanor is not

explicitly discussed.” Purifoy v. Department of Veterans Affairs , 838 F.3d 1367,

1373 (Fed. Cir. 2016).

Here, the appellant has not provided a sufficiently sound reason to overturn

the administrative judge’s credibility finding, and we discern none. ID at 11; see

Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding

that the Board may overturn an administrative judge’s demeanor-based credibility

findings only when it has “sufficiently sound” reasons for doing so).

The deciding official testified that he could not know whether the appellant

intended the email as a threat and because he “could only consider what was sent

in that email.” HT at 58 (testimony of the deciding official). He also testified

that by using the word “traitor” in the appellant’s email he “signifie[d] some lack

of trust” in his coworkers. HT at 62 (testimony of the deciding official). We do

not perceive these statements to be inconsistent. The deciding official could have

concluded that the appellant lacked trust in his coworkers because he called his

coworkers traitors in the email itself, while at the same time being unable to

further determine the appellant’s intent. The deciding official’s testimony that

he did not consider whether the appellant’s actions were malicious supports our

interpretation. HT at 58-59 (testimony of the deciding official). Therefore,

we defer to the administrative judge’s decision to credit the deciding official’s

testimony.

The appellant has not identified any mitigating factors that the deciding

official failed to consider. PFR File, Tab 1. As the administrative judge

recognized, the deciding official considered that “the appellant had no prior

disciplinary actions, and had 17 years of successful service with the government.”

ID at 10; IAF, Tab 7 at 21. Further, the deciding official considered the

appellant’s expressed remorse and additional “significant mitigating

circumstances,” including “[a]lcohol abuse[, the] anniversary of [his] spouse’s

death[,] . . . [and] stress.” ID at 10-11; IAF, Tab 7 at 22-23. Nonetheless,

the administrative judge explained that the deciding official reasonably

determined that aggravating factors outweighed those mitigating factors.

ID at 11; IAF, Tab 7 at 23. We see no reason to disturb these well -reasoned

findings. McCarty v. Department of the Navy, 72 M.S.P.R. 201, 202-03, 205, 207

(1996) (determining that an administrative judge erred in mitigating the removal

to a lesser penalty when an appellant with prior discipline was charged with

making a statement to a coworker that resulted in anxiety and disruption in the

workplace, notwithstanding the appellant’s 15 1/2 years of satisfactory service),

aff’d per curiam, 114 F.3d 1207 (Fed. Cir. 1997); Tate v. Department of Defense,

57 M.S.P.R. 180, 189-91 (1993) (finding the penalty of removal was reasonable

for the sustained charges of threatening a supervisor and absence without leave

even though they were the appellant’s first offenses in 24 years of service).

Accordingly, we affirm the initial decision as modified above.

NOTICE OF APPEAL RIGHTS 8

The initial decision, as supplemented by 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

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

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.

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. 9 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).

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.

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