Opinion

Frericks Lonnie v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Apr 5, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

concluding that the Board must defer to an administrative judge’s credibility determinations even when she relies on demeanor “by necessary implication”

How later courts described this case

concluding that the Board must defer to an administrative judge’s credibility determinations even when she relies on demeanor “by necessary implication”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LONNIE FRERICKS, DOCKET NUMBER

Appellant, PH-0752-20-0355-I-1

DEPARTMENT OF THE NAVY, DATE: April 5, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Richard R. Renner , Esquire, Silver Spring, Maryland, for the appellant.

Luke K. McPherson , Indian Head, Maryland, 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 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as expressly MODIFIED to

expand upon and clarify the administrative judge’s analysis regarding

whistleblower reprisal and disability discrimination, we AFFIRM the initial

decision.

The following facts, as further detailed throughout the record and the initial

decision, appear to be undisputed. The appellant most recently held the position

of Technician in the agency’s Explosive Ordnance Disposal (EOD) Department,

working at a facility in Indian Head, Maryland. Initial Appeal File (IAF), Tab 35,

Initial Decision (ID) at 2. In February 2020, the agency proposed his removal

from service for “unacceptable conduct.” IAF, Tab 4 at 31-45.

The proposal included a lengthy narrative surrounding three incidents or

specifications. Id. at 31-34. Chronologically, the first alleged that the appellant

had a verbal altercation with a coworker on January 2, 2019, resulting in a

bullying accusation consistent with other employees’ reported fears of the

appellant. Id. at 34. The second alleged that the appellant had a verbal

altercation with another coworker on and around June 4, 2019, which included the

appellant getting in the coworker’s face and making demeaning comments. Id.

at 33. The third alleged that the appellant had an altercation with his supervisor

on October 24, 2019, which culminated with the appellant punching his computer

screen and desk, and yelling at his supervisor while standing just inches from the

supervisor’s face. Id. at 32. The deciding official sustained the removal, finding

all the specifications proven. IAF, Tab 5 at 42-56.

The appellant filed the instant appeal to challenge his removal. IAF, Tab 1.

After developing the record and holding the requested hearing, the administrative

judge sustained the action. E.g., Hearing Transcript, Volume 1 (HT1); Hearing

Transcript, Volume 2 (HT2); Hearing Transcript, Volume 3 (HT3). 2 She first

found that the agency proved its specifications and charge. ID at 4-9 (October 24

incident), 9-16 (June 4 incident), 16-20 (January 2 incident and accompanying

reports). The administrative judge next found that the appellant failed to prove

his claims of disability discrimination, ID at 21-24, or reprisal for equal

employment opportunity (EEO) activity, ID at 24-27.

Regarding his whistleblower reprisal claim, the administrative judge found

that the appellant met his burden of proving that he engaged in some protected

disclosures and activities but failed to meet his burden for others. ID at 27-35.

Of those that remained, the administrative judge found that the appellant proved

some, but not all, were a contributing factor in his removal. ID at 35-38. She

then shifted the burden and found that the agency met its burden of rebutting the

appellant’s prima facie case of reprisal. ID at 38-40.

The administrative judge also found that the appellant failed to prove his

harmful error claim. ID at 40-45. Finally, the administrative judge found that the

agency proved the nexus requirement, as well as the reasonableness of its penalty.

ID at 45-48.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 12. 3 After a lengthy description of background information, id.

at 13-39, and a statement of the case, id. at 39-42, the appellant’s petition

presents several specific legal arguments, none of which concern the agency’s

We note that volumes 1 & 3 of the transcript are the reverse of what might be

expected. Volume 1 details the third day of the hearing while volume 3 details the first

day of the hearing.

The appellant requested and received multiple extensions, so his petition is timely,

despite appearing otherwise. PFR File, Tabs 2, 4, 6. The appellant also requested and

received permission to submit a petition that is nearly double the Board’s ordinary

length limitation. PFR File, Tab 10.

proof of its charge. Instead, the appellant reasserts his claims of harmful

procedural error, id. at 42-43, whistleblower reprisal, id. at 43-68, and disability

discrimination. Id. at 68-70. The appellant also challenges the reasonableness of

the penalty, id. at 70-71, and the administrative judge’s decision to disallow

certain witnesses, id. at 71. The agency has filed a response to the appellant’s

petition, 4 to which the appellant has replied. 5 PFR File, Tabs 15, 25. 6

The appellant failed to prove his harmful error claim.

As previously noted, the administrative judge found that the agency proved

its charge, and the appellant has not substantively challenged those findings on

review. Accordingly, our analysis will begin where the appellant’s petition began

—with his harmful procedural error affirmative defense.

The agency’s response appeared to be untimely by a day. Compare PFR File, Tab 14

(indicating that the filing deadline was October 11, 2021), with PFR File, Tab 15

(agency’s response filing, submitted on October 12, 2021). But, as the agency has

correctly noted, October 11, 2021, was a Federal holiday. PFR File, Tab 19. Therefore,

we find the response timely, pursuant to 5 C.F.R. § 1201.23.

The appellant requested and received permission to submit a reply that exceeded the

Board’s length limitations. PFR File, Tab 24.

The appellant has requested leave to submit a motion to strike evidence included in the

agency’s response brief about the appellant’s harmful error claim. PFR File, Tab 21.

He asserts that the evidence should have been submitted below, not on review. Id. The

agency has requested leave to respond to the appellant’s reply brief because it contained

new arguments. PFR File, Tab 27. The appellant filed a pleading in opposition. PFR

File, Tab 29.

Both parties’ requests for leave to submit further pleadings are denied. We will not

consider the evidence included with the agency’s response brief. It was submitted for

the first time on review, without any indication that it was previously unavailable. See

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (recognizing that, under

5 C.F.R. § 1201.115, the Board will not consider evidence submitted for the first time

with the petition for review absent a showing that it was unavailable before the record

was closed despite the party’s due diligence). Plus, the evidence is not necessary to our

conclusion that the appellant’s harmful error claim is unavailing. We also will not

consider any arguments contained in the appellant’s reply brief that exceed the bounds

of the agency’s response. See 5 C.F.R. § 1201.114(a)(4) (providing that a reply to a

response to a petition for review is limited to the factual and legal issues raised by

another party in the response to the petition for review; it may not raise new allegations

of error).

Reversal of an action for harmful error is warranted where a procedural

error likely had a harmful effect upon the outcome of the case before the agency.

Henton v. U.S. Postal Service, 102 M.S.P.R. 572, ¶ 15 (2006). Harmful error

cannot be presumed, and the burden of showing harmful error lies with the

appellant. Id. To show harmful error, an appellant must prove that any

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.

Id.

Within the proposal to remove the appellant, the agency included an

analysis of the factors considered for deciding on a penalty. IAF, Tab 4 at 34-39.

Among other things, this analysis described his past disciplinary record as

including letters of reprimand in September 2010 and June 2015, along with

several other less formal interventions. Id. at 36.

Broadly speaking, the appellant’s harmful error claim concerns his ability

to review those September 2010 and June 2015 reprimands before the deciding

official issued her decision—reprimands that the appellant has since disputed in

terms of authenticity or applicability. E.g., ID at 44-45; PFR File, Tab 12

at 42-43. The administrative judge was not persuaded. She provided a detailed

accounting of the parties’ extensive communications during this response period,

which included the agency’s instructions for obtaining all the materials relied

upon, the appellant’s admitted failure to follow those instructions, and the

appellant’s apparent request for other materials outside the proper channels. ID

at 40-43. The administrative judge also noted that the deciding official testified

that she did not review the appellant’s past reprimands or rely upon them in

reaching her decision. ID at 45.

On review, the appellant argues that the agency’s instruction for obtaining

materials relied upon for the proposed removal—which consisted of calling a

particular individual by a phone number provided—amounted to an impermissible

“hurdle.” PFR File, Tab 12 at 42. The appellant further argues that the harm

from this was evident because the administrative judge faulted the appellant for

failing to review and challenge the reprimands during the response period. Id.

We are not persuaded. Even if we were to find that the circumstances

amounted to an agency error, the appellant’s argument about the resulting harm is

misplaced. The appellant’s petition contains no argument that the agency would

have reached a different conclusion if it had not erred in the way the appellant has

alleged. To the contrary, the deciding official’s testimony, as recounted in the

initial decision, indicates that the agency would have reached the same

conclusion, since she did not rely on either of the reprimands the appellant now

disputes. ID at 45.

The appellant made some disclosures protected under section 2302(b)(8) and

engaged in some activity protected under section 2302(b)(9).

Pursuant to the Whistleblower Protection Enhancement Act of 2012

(WPEA), to prevail on a prohibited personnel practice affirmative defense in a

chapter 75 appeal that independently could form the basis of an individual right

of action appeal, the appellant must first demonstrate by preponderant evidence

that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in

protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that the

disclosure or activity was a contributing factor in the adverse action. See Alarid

v. Department of the Army, 122 M.S.P.R. 600, ¶¶ 12-13 (2015) (recognizing that,

under the WPEA, an appellant may raise an affirmative defense of whistleblower

retaliation based on protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B),

(C), and (D)); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 19

(2013) (stating the foregoing proposition concerning disclosures protected by

5 U.S.C. § 2302(b)(8)). If the appellant meets this burden, then the burden of

persuasion shifts to the agency to prove by clear and convincing evidence that it

would have taken the same action in the absence of the appellant’s protected

disclosure or activity. Alarid, 122 M.S.P.R. 600, ¶ 14.

The administrative judge addressed the following disclosures or activities

in concert with the appellant’s whistleblower reprisal claim:

Disclosure 1 – mismanagement of funding for improvised nuclear

device (IND) countermeasures,

Disclosure 2 – the dumping of beryllium tools in a river,

Activity 3 – an EEO complaint that alleged whistleblower reprisal

pertaining to Disclosure 1, 7

Disclosure 4 – misuse of the agency’s 3D printer,

Disclosure 5 – safety concerns surrounding the fumes caused by the

installation of foam tiles, and

Disclosure 6 – his supervisor’s fishing during a work trip.

ID at 29-35. The administrative judge found that the appellant met his burden of

proving that Disclosure 1, Disclosure 2, Activity 3, and Disclosure 5 were

protected, but failed to do the same for Disclosure 4 or Disclosure 6. ID at 29-35.

The appellant disagrees with respect to Disclosures 4 and 6, while also arguing

that the administrative judge ignored some other protected activities. PFR File,

Tab 43-45. We will address each in turn.

Disclosure 4

On review, the appellant describes Disclosure 4 as consisting of him asking

a coworker, “Hey [], when [were] you going to tell me you broke the printer?”

PFR File, Tab 12 at 43. This question occurred at the start of the January 2, 2019

altercation underlying the agency’s removal action. See, e.g., IAF, Tab 4 at 34,

Tab 5 at 63-65; ID at 16-20.

When discussing this matter, the administrative judge correctly referenced the WPEA

provision that protects an individual such as the appellant from reprisal for “the

exercise of any appeal, complaint, or grievance right granted by any law, rule, or

regulation, [] with regard to remedying a violation of [section 2302(b)(8)]”). ID at 33;

5 U.S.C. § 2302(b)(9)(A)(i). However, the initial decision otherwise described the

appellant’s EEO complaint alleging whistleblower reprisal as a “protected disclosure.”

ID at 33-34. To be most accurate and clear, we are labeling the matter as “Activity 3,”

rather than “Disclosure 3,” since this is an activity protected under

section 2302(b)(9)(A)(i), rather than a disclosure protected under section 2302(b)(8).

A protected disclosure is a disclosure that an appellant reasonably believes

evidences a violation of any law, rule, or regulation, gross mismanagement, a

gross waste of funds, an abuse of authority, or a substantial and specific danger to

public health or safety. Chavez v. Department of Veterans Affairs,

120 M.S.P.R. 285, ¶ 18 (2013). A reasonable belief exists if a disinterested

observer with knowledge of the essential facts known to and readily ascertainable

by the appellant could reasonably conclude that the actions of the Government

evidence one of the categories of wrongdoing listed in section 2302(b)(8)(A). Id.

The appellant need not prove that the matter disclosed actually established one of

the types of wrongdoing listed under section 2302(b)(8)(A); rather, the appellant

must show that the matter disclosed was one which a reasonable person in his

position would believe evidenced any of the situations specified in 5 U.S.C.

§ 2302(b)(8). Id.

The administrative judge found that the appellant failed to prove

Disclosure 4 was protected because he did not establish that there was any related

agency rule and because the appellant had asked the coworker a question, rather

than disclosing the type of wrongdoing covered under the statute. ID at 34. The

appellant disagrees, pointing us to hearing testimony. PFR File, Tab 12 at 25-27,

43-44 (referencing HT2 at 94-95, 182-83; HT3 at 94, 102). According to the

appellant, this hearing testimony proved that his coworker “violated workplace

rules about getting training and permission to use the 3D printer and to report

damage to that printer.” Id. at 43.

We are not persuaded. Despite the appellant’s suggestion to the contrary,

his question did not clearly implicate any identifiable violation of law, rule, or

regulation. Compare Salerno v. Department of the Interior, 123 M.S.P.R. 230,

¶ 6 (2016) (recognizing that disclosures must be specific and detailed, not vague

allegations of wrongdoing), with Ayers v. Department of the Army,

123 M.S.P.R. 11, ¶ 24 (2015) (recognizing that an individual need not identify a

statutory or regulatory provision by a particular title or number “when the

statements and the circumstances surrounding the making of those statements

clearly implicate an identifiable violation of law, rule, or regulation”) (quoting

Langer v. Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001)).

The hearing testimony the appellant has cited, including his own, shows

that the appellant had some informal authority regarding care for the 3D printer.

HT2 at 94-95 (testimony of Technician), 182-83 (testimony of the appellant);

HT3 at 94, 102 (testimony of Branch Manager). But other evidence, including

the appellant’s response to his proposed removal, shows that the coworker

contacted “the Code D25 lead when it comes to the 3D printers” as the

malfunction occurred, who relayed the information to the appellant, leading to the

appellant’s alleged disclosure 2 days later. IAF, Tab 5 at 28, 63. According to

subsequent notes from interviews with the appellant, the coworker, and their

differing supervisors about the confrontation, the cause of the malfunction was

unknown. Id. at 63. The notes further indicate that written instructions would be

added near the 3D printer, indicating that any future malfunction should be

reported to the appellant, presumably because there were no such instructions at

the time. Id. at 64.

These circumstances show that the appellant did not have a reasonable

belief that he was making the type of disclosure protected by the whistleblower

statute as he asked, “when [were] you going to tell me you broke the printer?”

This is particularly so because the coworker was not within the same chain of

command as the appellant, there was no written or otherwise clearly established

and implicated rule about the 3D printer at the time, and the appellant knew that

the coworker had immediately alerted a third party about the printer’s

malfunction, who then relayed the information to the appellant. The coworker

did not hide the malfunction, leave it to languish, or engage in any other

impropriety. The appellant’s reliance on cursory testimony indicating that

individuals were supposed to “go through” him for 3D printing or “let [him]

know” in the case of a malfunction do not persuade us otherwise. E.g., HT2 at 95

(testimony of Technician); HT3 at 94 (testimony of Branch Manager). When the

appellant asked his coworker about the 3D printer, he may have been vaguely

implying some sort of wrongdoing, and he was certainly initiating what would

become some of the misconduct relied upon in this removal action. He was not,

however, making a protected disclosure.

Disclosure 6

To recall, the appellant’s removal was also based on an altercation he had

with his first-line supervisor, on October 24, 2019, which stemmed from the

supervisor taking a project away from the appellant. Supra p. 2. Later that day,

the first-line supervisor emailed the appellant. Among other things, this email

message reiterated that he was taking the project away from the appellant because

he did not find the appellant’s work on the matter acceptable. IAF, Tab 30 at 7.

In an email response, the appellant copied several management officials.

Id. at 6. Among other things, the appellant asserted that his supervisor had failed

to provide any guidance for the project, so he had performed under the guidance

he received from others during a conversation in which the supervisor was not

involved, “because [the supervisor] left before noon to go fishing (having spent

only 2 hours with the warfighter) on what was supposed to be a two-day trip to

Virginia Beach.” Id. at 6. That statement about his supervisor fishing is

Disclosure 6.

The circumstances surrounding this disclosure are further detailed in the

initial decision. ID at 7-9, 34-35. Generally speaking, the appellant and his

first-line supervisor had attended a meeting in Virginia Beach. ID at 7, 9. The

appellant drove home after the meeting. Id. His first-line supervisor, who had a

longer drive ahead of him, did not. Having driven 5 hours to Virginia Beach and

attended the 2-hour meeting, the appellant’s supervisor stuck with his previously

made plan to stay overnight and drive home the next day. ID at 7. The limited

but seemingly uncontradicted evidence about the remainder of the supervisor’s

day was testimony indicating that he teleworked for 1 additional hour, before

fishing off a local pier during his off-duty time. HT3 at 25 (testimony of

deciding official), 125 (testimony of supervisor).

The administrative judge did not find Disclosure 6 protected. ID at 34-35.

Among other things, she noted that the appellant’s subsequent descriptions about

the disclosure, while facing removal, grossly overstated its actual contents. ID

at 7-8, 35; see IAF, Tab 5 at 31, 34. She also found the first-line supervisor’s

testimony about the trip credible, while the appellant’s disclosure and subsequent

statements about the matter were inconsistent and embellished. ID at 9, 34-35.

On review, the appellant has characterized Disclosure 6 as protected

because it revealed time and attendance fraud. PFR File, Tab 12 at 45. In his

brief argument about the same, the appellant asserts that the administrative judge

improperly relied on the timing and motive for the disclosure to find that it was

not protected. Id. (citing 5 U.S.C. § 2302(f)(1)(C), (G) (providing that a

disclosure is not excluded from protection because of an individual’s motive or

the time passed since the alleged wrongdoing)). We disagree.

The administrative judge did not find that the appellant’s motive or timing

precluded him from proving that Disclosure 6 was protected. She instead found

that the appellant’s motive, timing, and other circumstances showed that he did

not have a reasonable belief that he was disclosing the type of wrongdoing

covered by the whistleblower statute. See, e.g., Ayers, 123 M.S.P.R. 11, ¶ 20

(recognizing that a disclosure is not excluded from protection based on an

appellant’s motive in making it, but motive may be relevant to the determination

of a reasonable belief). Among other things, the circumstances included his

actual disclosure, followed by his inconsistent recasting of the disclosure as

revealing something more nefarious, without any substantive support. Put

another way, although the appellant has now characterized his disclosure as one

of time and attendance fraud, he has not directed us to any reason why he would

have believed that the supervisor engaged in fraud, as opposed to him following

whatever time, attendance, travel, or telework rules might apply to the

circumstances—where the supervisor had driven 5 hours to attend a 2-hour

meeting and would need to drive back either the same day or the next. See, e.g.,

Ramos v. Department of the Treasury, 72 M.S.P.R. 235, 240-41 (1996) (finding

that an individual’s disclosure was based purely on speculation, not a reasonable

belief of illegal activity, so it was not protected); Sobczak v. Environmental

Protection Agency, 64 M.S.P.R. 118, 122 (1994) (an appellant’s disclosure does

not satisfy the reasonable belief requirement if he is merely reporting unsupported

speculation). Accordingly, we agree with the administrative judge’s

determination that the appellant failed to meet his burden for Disclosure 6.

Additional activities

The appellant’s petition for review next includes a single paragraph,

asserting that the administrative judge ignored additional activity protected by

section 2302(b)(9). PFR File, Tab 12 at 45. He describes this as including his:

Refusing to falsify his travel record to support the 2-day trip to

Virginia Beach;

Refusing to work around the noxious fumes caused by the

installation of foam tiles;

Participating in an NCIS investigation; and

Participating in his EEO claim.

Id. As further detailed below, we are not persuaded.

Section 2302(b)(9)(D) protects an individual such as the appellant from

reprisal for their “refusing to obey an order that would require the individual to

violate a law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(D). Citing that

provision, the appellant asserts that he engaged in protected activity by refusing

to falsify his travel record and by refusing to work around noxious fumes. PFR

File, Tab 12 at 45. Yet, regarding his purported refusal to falsify a travel record,

the appellant does not refer us to any supportive evidence. Id. (referencing ID

at 7). Instead, the appellant has merely alluded to the administrative judge’s

discussion of how the appellant’s testimony and written statements about the

circumstances surrounding the Virginia Beach trip were inconsistent and not

credible. ID at 7-9. Without more, we will not pour over the voluminous record

in search of preponderant evidence that the appellant received and refused to obey

an order to falsify his travel record. See 5 C.F.R. § 1201.114(b) (providing that a

petition for review should include all of a party’s factual and legal arguments,

and it must be supported by specific references to the record). This is particularly

so because the administrative judge did not find the appellant’s version of events

surrounding this incident credible, and those findings are entitled to deference.

See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir.

2016) (concluding that the Board must defer to an administrative judge’s

credibility determinations even when she relies on demeanor “by necessary

implication”); Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.

2002) (explaining that the Board must defer to an administrative judge’s

credibility determinations when, as here, they are based, explicitly or implicitly,

on observing the demeanor of witnesses testifying at a hearing; the Board may

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

doing so).

Similarly, the appellant’s assertion that he refused to work around noxious

fumes caused by the installation of foam tiles is unavailing. He has merely

referred to us a statement of facts from his attorney, which does not constitute

preponderant evidence. PFR File, Tab 12 at 45 (referencing IAF, Tab 16

at 10-11); see Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995)

(finding that statements of a party’s representative in a pleading do not constitute

evidence). Moreover, although the appellant has repeatedly described his

concerns about the noxious fumes, we found no reason to find that the appellant

“refus[ed] to obey an order that would require [he] violate a law, rule, or

regulation” in connection with the fumes. 5 U.S.C. § 2302(b)(9)(D). We also

note that this allegation goes hand in hand with Disclosure 5, which the

administrative judge found protected. The appellant has not explained, and we

discern no reason, why protection under sections 2302(b)(8) and 2302(b)(9)(D)

for the same basic set of facts would warrant a different result than protection

under only the former provision. See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an

initial decision).

Regarding the appellant’s assertion that “[h]is participation in the NCIS

investigation is protected by 5 U.S.C. § 2302(b)(9)(C),” PFR File, Tab 12 at 45,

the appellant has provided no argument and no reference to the record.

Accordingly, the bare assertion is unavailing. To the extent the appellant is

referring to the contact he had with NCIS about Disclosure 1, as discussed in the

initial decision, e.g., ID at 30-31, the administrative judge found this set of

disclosures protected by section 2302(b)(8) and it is not apparent how protection

under section 2302(b)(9)(C), if warranted, would require any different result in

this appeal.

Regarding the appellant’s assertion that “his participation in his EEO case

is protected by 5 U.S.C. § 2302(b)(9)(A)(i) because it alleged retaliation,” PFR

File, Tab 12 at 45, again the appellant provides no further argument and no

reference to the record. He has not, for example, identified the EEO complaint to

which he may be referring, nor has he provided us with any showing that it

sought to remedy an alleged violation of section 2302(b)(8), as required under the

provision he cited. As we previously noted, the administrative judge

characterized one EEO complaint by the appellant as a “protected disclosure,”

when it is more accurately described as protected activity under

section 2302(b)(9)(A)(i). Supra note 7. If this is the EEO complaint to which the

appellant is alluding, the administrative judge did not ignore the matter. She

found it protected. Accordingly, we will not address the appellant’s assertion any

further.

The appellant established the contributing factor criterion for Disclosure 5, but no

other protected disclosure or activity.

The administrative judge found that although the appellant proved that

Disclosure 1, Disclosure 2, and Activity 3 were protected, he did not prove that

they were a contributing factor in his removal. 8 ID at 35-37. For Disclosure 5,

the administrative judge did not explicitly state that the appellant proved the

contributing factor element, but she seemed to imply as much. ID at 37-38; see

Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 28 (2016) (recognizing

that it is inappropriate for an administrative judge to determine whether an

agency can meet its burden in a whistleblower reprisal claim unless the appellant

has first met his burden of establishing a prima facie case). As further detailed

below, we modify the initial decision to explicitly find that the appellant proved

the contributing factor criterion for Disclosure 5, but no other protected

disclosure or activity.

Contributing factor – Disclosure 5

One way to establish the contributing factor criterion is the

knowledge/timing test, under which an employee may establish that his protected

disclosure or activity was a contributing factor in the contested personnel action

through circumstantial evidence, such as evidence that the official taking the

personnel action knew of the disclosure or activity, and that the personnel action

occurred within a period of time such that a reasonable person could conclude

that the disclosure or activity was a contributing factor in the personnel action.

Salerno, 123 M.S.P.R. 230, ¶ 13. If an appellant fails to satisfy the

knowledge/timing test, the Board must consider other evidence, such as that

We recall that Disclosure 1 concerned the alleged mismanagement of funds for

improvised nuclear device (IND) countermeasures, while Activity 3 was an EEO

complaint that alleged reprisal for Disclosure 1. Supra p. 7. The administrative judge

did not distinguish between the two when analyzing the contributing factor element of

the appellant’s burden; she instead referred only to “disclosures regarding the IND

countermeasures funding.” ID at 36. It seems apparent, though, that her analysis and

conclusion applied to both, consistent with her prior description of both as “protected

disclosures.” ID at 33-34, 36; supra p. 7.

pertaining to the strength or weakness of the agency’s reasons for taking the

personnel action, whether the whistleblowing was personally directed at the

proposing or deciding official, and whether those individuals had a desire or

motive to retaliate against the appellant. Rumsey v. Department of Justice,

120 M.S.P.R. 259, ¶ 26 (2013).

Although the administrative judge did not explicitly find that the appellant

proved the contributing factor criterion for Disclosure 5, we do. This set of

disclosures consisted of the appellant voicing concerns about toxic fumes that

were being generated during the installation of some foam panels in an area near

his workspace, causing him headaches and possibly endangering others as well.

E.g., IAF, Tab 5 at 60-61. The administrative judge provided an extensive

discussion of the surrounding circumstances, including both the appellant’s

disclosures and his surrounding conduct, some of which the agency relied on for

its removal action. E.g., ID at 9-16. Among other things, she correctly noted that

the appellant made the disclosure and then relayed it to multiple people, including

his first-line supervisor and the proposing official, all within months of his

proposed removal. IAF, Tab 4 at 31, Tab 5 at 61. Accordingly, we find that the

knowledge/timing test is satisfied for Disclosure 5, thereby proving that it was a

contributing factor in the appellant’s removal.

Contributing factor – Disclosure 1, Disclosure 2, & Activity 3

The administrative judge found that the appellant did not prove the

contributing factor criterion for Disclosure 1, Disclosure 2, or Activity 3. ID

at 36-37. In doing so, she noted that each occurred 5 or more years prior to his

removal, and she found that the appellant failed to establish any connection

between them and the individuals involved in his removal. Id.

On review, the appellant presents several arguments about his burden of

proving contributing factor. PFR File, Tab 12 at 45-57. He first argues that the

administrative judge erred by assessing contributing factor for each of his

protected disclosures or activities, individually, rather than doing so collectively.

Id. at 46-47. However, the appellant has not identified any persuasive support for

analyzing his claim in that way. He has instead referred us to a single Circuit

Court decision, which concluded that several discrete acts should be considered

together for purposes of deciding whether an individual had engaged in the kind

of activity covered under the opposition clause of Title VII. Id.; Demasters v.

Carilion Clinic, 796 F.3d 409, 416-17 (4th Cir. 2015). That conclusion is

unrelated to the WPEA and its contributing factor requirement. Under the burden

shifting scheme of a WPEA, the Board analyzes the contributing factor element

for each protected disclosure or activity, individually. See, e.g., Shannon v.

Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 32 (2014) (remanding an

appeal with instructions that, for each disclosure the administrative judge finds

protected, she must then determine whether the disclosure was a contributing

factor in the contested personnel action).

The appellant next references portions of the proposal and the decision

letters for his removal, along with hearing testimony, which described him as

having a history of outbursts or interpersonal conflicts dating back many years

prior to the charged misconduct underlying the removal action. PFR File, Tab 12

at 46-51. To the best that we understand, the appellant is arguing that we should

construe those references as including his protected disclosures or activities,

thereby satisfying the contributing factor element of his burden. Id. However,

we are not persuaded. Although the appellant pointed us to general references

that he had a history of behavior that the agency found objectionable during the

time that preceded the charged misconduct, he has not pointed us to any instance

of that encompassing any of his protected disclosures or activities, and we will

not make assumptions about the same.

Relatedly, the appellant recounts how the agency described the misconduct

cited in its charge as disruptive and causing others to feel unsafe around him.

PFR File, Tab 12 at 51-55. He then suggests that this proves the contributing

factor element or his reprisal claim, generally, because whistleblowing is

inherently disruptive. Id. Again, we are not persuaded. Despite the appellant’s

suggestion to the contrary, we find no reason to conclude that the agency’s stated

opposition to the disruption and fear caused by the appellant’s conduct—which

culminated with his angrily punching equipment and then getting within inches of

his supervisor’s face while yelling—meaningfully adds to his burden of proving

the contributing factor criterion or his reprisal claim. See generally Hamilton v.

Department of Veterans Affairs, 115 M.S.P.R. 673, ¶ 12 (2011) (recognizing that

a disclosure is still entitled to protection if stated bluntly, but this is not a general

license for bad behavior—the character and nature of the disclosure can still be a

legitimate basis for discipline).

The appellant’s remaining arguments concerning the contributing factor

element are similarly unavailing. PFR File, Tab 12 at 54-57. For example, the

appellant further suggests that we should find the knowledge/timing test satisfied

for purposes of Disclosure 1, Disclosure 2, & Activity 3, all of which occurred

many years before his removal, simply because the knowledge/timing test is

satisfied for Disclosure 5. Id. at 54-55. He also characterizes his employment

history as including a pattern of antagonism spanning his years of protected

disclosures and activity, and he contends that the agency deviated from normal

practices with respect to his removal. Id. at 55-56. Although we have considered

each of the appellant’s contributing factor arguments, we do not find them

persuasive. The appellant established a prima facie case of reprisal with respect

to Disclosure 5, but he failed to do so for any other disclosure or activity.

The agency proved that it would have removed the appellant in the absence of

Disclosure 5.

After finding that the appellant presented a prima facie case of

whistleblower reprisal concerning Disclosure 5, the administrative judge shifted

the burden and found that the agency proved that it would have taken the same

removal action against the appellant in the absence of his protected disclosure.

ID at 38-40. On review, the appellant challenges this finding. PFR File, Tab 12

at 57-68.

In determining whether the agency has shown by clear and convincing

evidence that it would have taken the same personnel action in the absence of a

protected disclosure, the Board generally will consider the following factors:

(1) the strength of the agency’s evidence in support of its action; (2) the existence

and strength of any motive to retaliate on the part of the agency’s officials who

were involved in the decision; and (3) any evidence that the agency takes similar

actions against employees who did not engage in whistleblowing but who are

otherwise similarly situated. See Carr v. Social Security Administration,

185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board must consider all pertinent

record evidence in making this determination. Whitmore v. Department of Labor,

680 F.3d 1353, 1368 (Fed. Cir. 2012). The Board does not view these factors as

discrete elements, each of which the agency must prove by clear and convincing

evidence. Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 11

(2010). Rather, the Board will weigh the factors together to determine if the

evidence is clear and convincing as a whole. Id.

Although the administrative judge acknowledged the applicable standard,

she provided only a brief analysis that does not explicitly address any of the Carr

factors. ID at 38-40. Accordingly, we modify the initial decision by

supplementing the analysis as follows.

The agency’s evidence in support of its removal action, which was based

on incidents in January, June, and October 2019, is strong. While sustaining the

agency’s charge, the administrative judge described the various documentary and

testimonial evidence pertaining to each incident. ID at 4-9 (October 24 incident),

9-16 (June 4 incident), 16-20 (January 2 incident and accompanying reports).

Among other things, this included contemporaneous documentation about each,

reflecting a pattern of increasingly discourteous, aggressive, and even violent

behavior by the appellant. IAF, Tab 4 at 46-47, Tab 5 at 12-18, 58-59, 63-64.

We recognize that only one of the three individuals targeted by the

appellant’s conduct during these incidents testified at the hearing, but each

lodged a complaint about the appellant and cooperated in the agency’s

investigations of the matters at the time. See Phillips, 113 M.S.P.R. 73, ¶ 12

(explaining that, when applying the first Carr factor, the Board will consider the

weight of the evidence that was before the agency when it acted). Plus, the

appellant’s responses to these incidents largely deflected blame rather than

substantively or persuasively denying that he had engaged in the alleged

misconduct. IAF, Tab 5 at 25-38, 60-62. To the extent that the appellant did

dispute the alleged misconduct, the administrative judge made well-reasoned

credibility findings in favor of the agency’s version of events, rather than the

appellant’s, which we adopt. ID at 4-20.

Conversely, the evidence suggests that the motive to retaliate was not

particularly strong. Disclosure 5 consisted of the appellant expressing safety

concerns about the 2- or 3-day installation of foam panels near his workspace, as

it related to remedial measures for ventilating the fumes caused by an adhesive.

E.g., IAF, Tab 5 at 12-18, 60-62. This set of disclosures was primarily directed at

a coworker overseeing the project, under a different chain of command, who had

accommodated remedial measures for the fumes that the appellant deemed

inadequate. Id. at 60-62. Nonetheless, this set of disclosures implicated

management as well, including the proposing and deciding officials, who the

appellant described as ignoring his complaints. Id. at 61. However, by the

appellant’s own telling, it seems as if everyone implicated by Disclosure 5 either

disagreed with appellant and thought the remedial measures implemented for the

fumes were sufficient, or they had minimal interest in the matter. Id. at 60-61.

The evidence of record does not suggest that they were concerned or had reason

to be concerned that Disclosure 5 cast them in an especially unfavorable light. In

other words, the record supports a conclusion that Disclosure 5 might cause some

motive to retaliate, but not so much so that it causes us to doubt that the agency’s

removal action.

As for evidence that the agency takes similar actions against employees

who did not engage in whistleblowing but who are otherwise similarly situated,

there appears to be none. When testifying about the choice of penalty, the

deciding official testified that she was not aware of anyone similarly situated.

HT3 at 31 (testimony of deciding official). Accordingly, this factor is not a

significant one. Campbell v. Department of the Army, 123 M.S.P.R. 674, ¶ 20

(2016).

As supplemented by this analysis to further consider and weigh these

factors, we agree with the administrative judge’s conclusion that the agency met

its burden. It proved by clear and convincing evidence that it would have taken

the same removal action in the absence of the appellant’s protected disclosure,

given the strength of its evidence showing a pattern of increasingly unacceptable

behavior and limited motive to retaliate.

We have considered each of the appellant’s numerous arguments to the

contrary, but we are not persuaded by any. For example, the appellant faults the

agency for not calling some witnesses, including the targets of his discourteous

behavior for the January and June incidents, during his Board appeal. PFR File,

Tab 12 at 57-58. But this erroneously conflates the strength of the agency’s

evidence in support of its removal action, at the time, with the evidence it put on

to prove its charge before the Board. Phillips, 113 M.S.P.R. 73, ¶ 12. As we

have discussed, the witnesses to which the appellant is referring filed complaints

about the appellant’s behavior, characterizing it as harassment, bullying, and

cause for concern that the appellant would turn violent. E.g., IAF, Tab 5

at 12-18, 63-64.

The appellant also notes that the target of his discourteous behavior in June

was similarly found to be discourteous but received no punishment at all. PFR

File, Tab 12 at 58; see IAF, Tab 5 at 58-59. However, the appellant was not

removed because of that single incident or any single lapse in judgment—he was

removed based on a pattern of behavior that culminated in his violent punching of

equipment and aggressively getting in the face of his supervisor. E.g., IAF, Tab 4

at 32-34, Tab 5 at 47, 52; HT3 at 14-16 (testimony of deciding official). The

appellant’s other arguments about the agency’s burden are similarly mistaken, as

they relate to other arguments we already dismissed or they are otherwise

unavailing.

The appellant failed to prove his claim of disability discrimination.

The appellant characterized his disability discrimination affirmative

defense, which the administrative judge found unavailing, as a failure to

accommodate claim below. PFR File, Tab 12 at 68-70; ID at 21-24. However,

his petition for review states that the only accommodation he needed was to not

be fired. Compare PFR File, Tab 12 at 68-70, with IAF, Tab 16 at 13.

It seems that the appellant’s current theory of this affirmative defense is

that he was subjected to disparate treatment because the agency’s removal action

was based on his posttraumatic stress disorder (PTSD). PFR File, Tab 12

at 68-70. 9 It is worth noting that the appellant’s final outburst, where he punched

equipment and got in the face of his supervisor, occurred on October 24, 2019.

E.g., IAF, Tab 4 at 46. Days later, on October 31, 2019, the appellant met with a

third party to discuss this and other issues. IAF, Tab 5 at 25, 35; HT2 at 208-15

The appellant separately seems to assert that the agency erred by refusing to consider

whether PTSD affected his behavior. PFR File, Tab 12 at 68-69. He quotes the

deciding official, who testified that “PTSD or no PTSD or any other kind of condition,

[the appellant’s] behavior was unacceptable.” Id. at 69 (referencing HT3 at 66

(testimony of deciding official)). To the extent that the appellant is suggesting that a

diagnosis of PTSD could excuse his misconduct, he is mistaken. See, e.g., Burton v.

U.S. Postal Service, 112 M.S.P.R. 115, ¶ 16 (2009) (explaining that the Americans with

Disabilities Act does not immunize disabled employees from discipline for misconduct,

provided the agency would impose the same discipline on an employee without a

disability); Fitzgerald v. Department of Defense, 85 M.S.P.R. 463, ¶ 4 (2000)

(recognizing that an agency is never required to excuse a disabled employee’s violation

of a uniformly-applied, job-related rule of conduct, even if the employee’s disability

caused the misconduct).

(testimony of appellant). Immediately thereafter, he had a breakdown, crying,

hyperventilating, and voluntarily leaving work by ambulance to seek mental

health treatment. IAF, Tab 5 at 25, 35; HT2 at 208-15 (testimony of appellant).

In a letter dated the next day, November 1, 2019, the proposing official

placed the appellant on administrative leave. IAF, Tab 5 at 8-9. Then, on

November 4, 2019, the Commanding Officer for Naval Support Activity South

Potomac barred the appellant from the facility on which he normally worked,

citing an otherwise unexplained “pending investigation.” Id. at 10. He renewed

that prohibition 20 days later, citing the appellant’s “threatening actions, anger

management issues, self-admitted [PTSD], and severe anxiety.” Id. at 11.

The proposing official then issued its proposal to remove the appellant a

couple of months later, in February 2020. IAF, Tab 4 at 31. While discussing the

events of October 24, 2019, the proposal recognized the events that followed,

including the appellant’s emotional breakdown, without mentioning any health

condition. Id. at 32-33. But the appellant explicitly discussed PTSD in his

response to the proposed removal, indicating that he had just begun counseling

for the same. IAF, Tab 5 at 36.

As best as we understand his arguments on review, the appellant is

asserting that if it were not for his emotional breakdown and associated disclosure

of his PTSD, the Commanding Officer for Naval Support Activity South Potomac

would not have barred him from the base and the proposing and deciding officials

would not have moved forward with his removal. 10 PFR File, Tab 12 at 68-70.

The administrative judge concluded the record did not show that his

removal was based on any disability, or that he was medically unable to perform

in his position. ID at 22-23. She further concluded that the appellant failed to

Below, the administrative judge considered the appellant’s PTSD, but also his

reported hypertension and hearing loss with tinnitus. ID at 22-23. However, the

appellant’s petition exclusively relies on his PTSD. PFR File, Tab 12 at 68-70. He

seems to have abandoned any argument about hypertension or hearing loss having any

relation to his removal or disability discrimination claim. Id. Accordingly, our analysis

is similarly focused on PTSD.

prove that he was actually disabled or regarded as disabled. ID at 23-24.

Specific to PTSD, the administrative judge indicated that the appellant presented

a Department of Veterans Affairs decision, from 2007, giving him a 10%

service-connected disability rating for “PTSD with insomnia,” but no treatment

records or other documentation. Id. at 22, 24; IAF, Tab 26 at 10-12.

As further detailed below, we vacate the administrative judge’s finding that

the appellant did not have a disability. We instead find that, even if the appellant

had a disability, as that term is defined by the statute, the appellant failed to meet

his burden of proving that a disability was a motivating factor in his removal.

To prove his disability discrimination claim, the appellant must first

establish that he is an individual with a disability as that term is defined in the

Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and Equal

Employment Opportunity Commission regulations. Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶ 37. He may prove that he has a

disability by showing that he: (1) has a physical or mental impairment that

substantially limits one or more major life activities; (2) has a record of such

impairment; or (3) is regarded as having such an impairment. Id. (citing

42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1)). The determination of whether a

condition is substantially limiting is made by comparing the ability of the

allegedly disabled individual to “most people in the general population.” Id.

(citing 29 C.F.R. § 1630.2(j)(1)(ii)). The “substantially limits” standard is not

“demanding,” and is intended to “be construed broadly in favor of expansive

coverage.” Id. (citing 29 C.F.R. § 1630.2(j)(1)(i)).

Again, for the asserted PTSD, the record includes the 2007 service-

connected disability decision from the Department of Veterans Affairs, which

indicates that the appellant had once received 4 months of pharmacological

treatment, but none other. IAF, Tab 26 at 12. Then, in his response to the

proposed removal in 2020, the appellant indicated that he had just started his

first-ever counseling for PTSD. IAF, Tab 5 at 36.

The appellant provided further explanation of his PTSD at the hearing.

E.g., HT2 at 103 (testimony of appellant). Among other things, he described this

condition as associated with the trauma of his past work investigating mass

casualty events caused by improvised explosive devices. Id. at 103-06. The

appellant characterized his PTSD as including sleeplessness, flashbacks, and

short-temperedness. Id. at 106-08.

We recognize that the administrative judge found the appellant’s testimony

not credible in many regards, including his claims about a hearing impairment.

E.g., ID at 6, 8-9, 16, 22-23. However, she did not make explicit credibility

findings concerning the appellant’s testimony about PTSD. Accordingly, the

record seems to include limited but uncontradicted evidence of the appellant

having PTSD, along with a few instances of the agency and the appellant

referencing this PTSD in the period surrounding his removal.

Assuming that this suffices for purposes of establishing the appellant had a

disability, as that term is defined, his burden does not end there. For a disability

discrimination claim based on disparate treatment, the Board applies the same

analytical framework as discrimination claims arising under Title VII. Pridgen,

2022 MSPB 31, ¶¶ 40, 42. The Board will first inquire whether the appellant has

shown by preponderant evidence that the prohibited consideration was a

motivating factor in the contested personnel action. Id., ¶¶ 20-21, 42. Such a

showing is sufficient to establish that the agency violated the anti-discrimination

law. Id. If the appellant meets this burden, we will then determine whether the

agency still would have taken the contested action in the absence of the

discriminatory motive. Id., ¶¶ 22, 42.

As mentioned above, the agency’s second decision to prohibit the appellant

from entering the facility in which he worked explicitly indicated that it was

based on his “threatening actions, anger management issues, self-admitted

[PTSD], and severe anxiety.” IAF, Tab 5 at 11. However, the administrative

judge found that there was no evidence of the proposing official, deciding

official, or anyone else at the Indian Head facility in which the appellant worked

having any involvement in this decision by the Commanding Officer, Naval

Support Activity South Potomac, who oversaw multiple facilities. ID at 24.

Moreover, the question at hand is whether the appellant’s removal was based on

his disability, not his debarment. Supra p. 25. With that in mind, we find the

debarment letter notable, but not dispositive.

We further find it more likely than not that the agency’s removal action

was exclusively motivated by the appellant’s behavior. To the extent that agency

officials acknowledged the appellant’s PTSD in concert with his removal, they

did so while recognizing that the appellant had raised the matter and while

considering whether it was a mitigating circumstance. IAF, Tab 4 at 39, Tab 5

at 52-53. Conversely, the proposal and decision letters are filled with indications

that the appellant’s behavior over the prior decade had consisted of a pattern that

included misconduct, intervention by management, a period of improvement, then

more misconduct. E.g., IAF, Tab 4 at 31-36. Among other things, the agency

contended that this included increasingly worrisome intimidation of coworkers

and supervisors alike, racial slurs, demeaning comments, yelling, anger, rage, and

other indicators of potential violence. Id.

This is not simply announced in the proposal and decision letters. The

claims are bolstered by other evidence covering many years. For example, the

individual who supervised the appellant between 2015 and early 2019 testified

that his troubles with the appellant began on the very first day of their supervisor/

subordinate relationship, when the appellant caused another employee to cry.

HT3 at 92-93 (testimony of prior supervisor). He further testified that the

appellant had “at least four” other altercations with which he had to deal. Id.

at 93. The record also includes a memorandum from this prior supervisor, dated

February 2019, indicating that he had been approached by two agency employees,

one of whom was another manager, fearful that the appellant had been displaying

characteristics of an active shooter. Id. at 94-95; IAF, Tab 5 at 65. At the

hearing, this prior supervisor responded in the affirmative when asked if he was

concerned that the appellant might intentionally try to hurt his coworkers. HT3

at 111 (testimony of prior supervisor).

The appellant’s subsequent supervisor—the one involved in the October

2019 incident—provided similar testimony about his relatively brief time

managing the appellant. E.g., HT3 at 119-20 (testimony of supervisor). He

described the appellant as erratic and difficult. Id. at 121. Specific to the

October 2019 incident, he indicated that the appellant acted in a way he had never

seen in his 20-year tenure as a supervisor. Id. at 122-23. The supervisor further

characterized the appellant as causing him fear for his physical safety and

consistent with his training about actions associated with active shooters. Id.

Similarly, the individual targeted by the appellant’s ire during the June 2019

incident described the appellant as exhibiting rage that caused him concern for

potential workplace violence. IAF, Tab 5 at 12.

To the extent that the appellant’s immediate supervisors were questioned

about the appellant having PTSD, neither provided any indication that they knew

of this disability prior to him raising the matter in connection with his final act of

misconduct and the resulting removal action. E.g., HT3 at 98 (testimony of prior

supervisor), 123-24, 126 (testimony of supervisor). The deciding official testified

that the appellant’s disability played no role in her decision, and she only learned

of his PTSD after he was placed on administrative leave. 11 E.g., id. at 19, 22-23

(testimony of deciding official). Her testimony is consistent with the agency

finding the October 2019 incident between the appellant and his supervisor to be

the most worrisome and the final straw, requiring his removal. E.g., id. at 14-18.

Turning back to the debarment letter, the Security Director overseeing the

facility in which the appellant worked testified as well. HT3 at 140 (testimony of

Security Director). Among other things, he indicated that the appellant’s

management chain approached him in late October 2019, to describe the incident

The proposing official did not testify. ID at 37.

involving the appellant and his direct supervisor that had just occurred. Id.

at 140. The Security Director described elevating this issue to Naval Support

Activity South Potomac—the entity responsible for the appellant’s debarment

from the facility—who then investigated by, inter alia, interviewing the

appellant. Id. at 141-42. The Security Director attributed the appellant’s initial

debarment to the October 2019 altercation with his supervisor. Id. at 148-49.

When asked about the extension of this debarment, and its reference to PTSD, the

Security Director indicated that this was not part of the input he provided to

Naval Support Activity South Potomac. Id. at 141-43. He therefore implied that

the “self-admitted [PTSD], and severe anxiety” referenced in the Naval Support

Activity South Potomac second debarment letter was something that outside

entity had discovered and relied upon independently.

Based on this and other evidence, we do not find that the appellant has

proven that the agency’s removal action was improperly motivated by a

disability. Although the appellant may have informed agency officials that he has

PTSD in the period between his October 2019 altercation and the February 2020

proposal to remove him from service, there is not preponderant evidence that the

appellant’s purported PTSD motivated his removal. Instead, we find it more

likely than not that the proposal and decision to remove the appellant were based

solely on his increasingly unacceptable behavior, which had just culminated in his

most unacceptable outburst to date.

The agency’s choice of penalty was reasonable.

The appellant presents a brief argument about the agency’s chosen penalty.

PFR File, Tab 12 at 70-71. Where all of an agency’s charges are sustained, as

they are here, the Board will review the agency-imposed penalty only to

determine if the agency considered all the relevant factors and exercised

management discretion within the tolerable limits of reasonableness. Powell v.

U.S. Postal Service, 122 M.S.P.R. 60, ¶ 12 (2014). In making this determination,

the Board must give due weight to the agency’s primary discretion in maintaining

employee discipline and efficiency, recognizing that the Board’s function is not

to displace management’s responsibility, but to ensure that managerial judgment

has been properly exercised. Id. The Board will modify or mitigate an

agency-imposed penalty only where it finds the agency failed to weigh the

relevant factors or the penalty clearly exceeds the bounds of reasonableness. Id.

The administrative judge recognized this standard and found that the

agency met its burden of proving that removal was a reasonable penalty. ID

at 46-48. On review, the appellant briefly disagrees. PFR File, Tab 12 at 70-71.

He seems to suggest that although the deciding official considered the appellant’s

asserted PTSD and did not find it mitigating due to the lack of supportive

evidence, the record includes uncontested testimony about his PTSD, so we

should find it mitigating. Id. The appellant further asserts that the incidents

relied upon for removing him did not warrant that penalty, given his lengthy

military and civilian service with successful performance. Id.

We have considered these arguments but do not find them persuasive. The

appellant has not shown that the agency failed to consider the relevant factors or

that removal clearly exceeds the bounds of reasonableness. To the contrary, we

find that the mitigating circumstances the appellant asserted do not outweigh

other considerations, such as the nature and seriousness of his misconduct, the

repetitiveness of his inability to get along with others, his limited rehabilitation

potential, and his lack of remorse. E.g., IAF, Tab 5 at 46-53.

The administrative judge did not abuse her discretion by disallowing certain

witnesses.

The appellant’s final argument on review concerns the administrative

judge’s rulings as to requested witnesses. PFR File, Tab 12 at 71. As detailed in

a prehearing conference summary, the appellant requested 18 witnesses. IAF,

Tab 21 at 10. The administrative judge decided that three would not be allowed,

over the appellant’s disagreement and objection. Id.; IAF, Tab 22 at 9-10.

On review, the appellant reasserts his objection to the administrative

judge’s ruling as to these three requested witnesses. PFR File, Tab 12 at 71. He

presents a cursory explanation for two, but none for the other. Id. We have

reviewed this argument, as well as the appellant’s original explanations of their

expected testimony and his subsequent objection to their disallowance raised

below. IAF, Tab 16 at 31-33, Tab 22 at 9-11. After doing so, we are not

persuaded.

Administrative judges have broad discretion to regulate the proceedings

before them, including the discretion to exclude witnesses. Oulianova v. Pension

Benefits Guarantee Corporation, 120 M.S.P.R. 22, ¶ 12 (2013). We discern no

basis for concluding that the administrative judge’s disallowance of the three

witnesses identified was an abuse of that broad discretion.

To conclude, the appellant’s petition for review reasserts his claims of

harmful error, whistleblower retaliation, and disability discrimination, while also

presenting arguments about the reasonableness of the penalty and the

administrative judge’s disallowance of witnesses. 12 PFR File, Tab 12 at 42-71.

Although we have modified the initial decision in some ways, we find that the

appellant’s petition presents no basis for us to reach a different result, and we

affirm the administrative judge’s initial decision.

The appellant did not reassert his EEO reprisal claim on review. We note, though,

that the administrative judge’s analysis referred to both the “motivating factor” standard

we previously discussed and a “genuine nexus” requirement. ID at 24-27; supra p. 25.

During the period that followed the initial decision in this appeal, the Board clarified

the proper standard for claims of EEO reprisal, noting that the standard differs

depending on whether the claim arises under Title VII or the ADA. The motivating

factor standard applies to claims of reprisal for engaging in activity protected under

Title VII, while an appellant must prove the more stringent “but-for” causation in the

context of retaliation claims arising under the ADA. Haas v. Department of Homeland

Security, 2022 MSPB 36, ¶ 31.

To the extent that the administrative judge may have applied the wrong analytical

standard, we do not find the error harmful. She made well-reasoned findings of fact

that support a conclusion that the appellant’s prior EEO activity, all of which occurred

more than 5 years before his removal, was neither a motivating factor nor the but for

cause of his removal. ID at 25-27.

NOTICE OF APPEAL RIGHTS 13

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

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).

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.

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. 14 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).

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