The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL GARRISON, DOCKET NUMBER
Appellant, DC-0752-21-0462-I-2
v.
DEPARTMENT OF HOMELAND DATE: April 18, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Cameron Bonney Evans , Esquire, and Neil C. Bonney . Esquire, Virginia
Beach, Virginia, for the appellant.
Edith L. Moore McGee and Lorna J. Jerome , Esquire, Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
case to the regional office for further adjudication in accordance with this
Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly sustained both specifications of the charge of
improper conduct.
In order to prove a charge of improper conduct, the agency must
demonstrate by preponderant evidence that (1) the appellant engaged in the
conduct described in the agency’s specification and (2) the conduct constituted
misbehavior under the circumstances. See Canada v. Department of Homeland
Security, 113 M.S.P.R. 509, ¶ 9 (2010).
Under the first specification of improper conduct, the agency alleged that
on February 3, 2021, while on duty, the appellant drove a government-issued
5-ton vehicle towards two of his coworkers at the facility and stopped abruptly
within a short distance of them. Garrison v. Department of Homeland Security,
MSPB Docket No. DC-0752-21-0462-I-1, Initial Appeal File (IAF), Tab 4 at 42.
Based on her review of witness testimony and a video recording of the incident,
the administrative judge found that there was insufficient evidence that the
appellant intended to scare or intimidate the coworkers by approaching them
closely with his truck. Garrison v. Department of Homeland Security, MSPB
Docket No. DC-0752-21-0462-I-2, Appeal File (I-2 AF), Tab 18, Initial Decision
(ID) at 8; IAF, Tab 12 (video footage). However, given that the appellant came
so close to the two employees that he had to steer away from them to leave the
area, the administrative judge found that the appellant unnecessarily created an
unsafe situation that caused at least one of the coworkers to feel scared and
nervous. 2 ID at 8. We agree that this finding is consistent with the video
evidence. Moreover, to the extent the administrative judge found the appellant’s
testimony not credible, we do not discern sufficiently strong reasons to overturn
2
The administrative judge also found that the appellant had no official reason to be in
the area, although the specification is silent on this point.
3
her implicitly demeanor-based credibility determination. See Purifoy v.
Department of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016);
Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
Under the second specification, the agency alleged that on October 14,
2020, while on duty, the appellant engaged in an argument with a coworker, S.N.,
while “using profanity, [waving his] arms, and yelling.” Id. The appellant does
not dispute that the altercation took place or that his conduct was inappropriate. 3
However, he argues that the agency violated the applicable collective bargaining
agreement (CBA) by waiting 6 months before taking disciplinary action based on
the incident. I-2 AF, Tab 9 at 5 n.1; Petition for Review (PFR) File, Tab 1
at 12-13. Specifically, he cites Article 27, Section 3, which provides that
disciplinary actions “should be taken in a timely fashion.” PFR File, Tab 1 at 12.
We construe the appellant’s claim as an affirmative defense of harmful
procedural error. See Cambridge v. Department of Justice, 111 M.S.P.R. 152,
¶ 11 (2009) (holding that the harmful error standard applies to alleged violations
of a CBA). However, assuming that the agency’s delay in effecting the action
was in violation of the CBA, the appellant has not shown that such delay was
harmful, i.e., that the agency likely would not have removed him in the absence
or cure of the delay. See Social Security Administration v. Carr, 78 M.S.P.R.
313, 330-32 (1998) (finding that the appellant was not prejudiced by the agency’s
delay in bringing an action even if her memory had faded), aff’d, 185 F.3d 1318
(Fed. Cir. 1999). Hence, the appellant has not shown that the agency’s delay in
bringing the action warrants a different result. 4
3
The appellant also argues that the first specification, standing alone, would warrant at
most a reprimand. Given our finding that the agency proved both specifications of
improper conduct, as well as the charge of providing inaccurate information on an
employment document, it is unnecessary to address this argument.
4
The Board has also considered “stale charge” claims as raising the equitable defense
of laches, which bars an action where an unreasonable delay in bringing the action has
prejudiced the subject of the action. Salter v. Department of the Treasury, 92 M.S.P.R.
355, ¶ 10 (2002). The party asserting laches must prove both unreasonable delay and
prejudice. Id. Here, even if we were to find that the 6-month delay was unreasonable,
4
The administrative judge correctly sustained the charge of providing inaccurate
information on a Declaration for Federal Employment .
Regarding the second charge, it is undisputed that, on May 11, 2011, the
appellant pled guilty to misdemeanor possession with the intent to distribute
marijuana of not more than one-half ounce, and, as a result, he was sentenced to
6 months of probation from May 5 to November 4, 2011. IAF, Tab 6 at 5. On
August 24, 2018, the appellant completed a “Declaration for Federal
Employment.” IAF, Tab 8 at 10-13. On the form, he checked “no” in response to
Question 9, which asked the following question: “During the last 7 years, have
you been convicted, been imprisoned, been on probation, or been on parole?” Id.
at 12. It is undisputed that this answer was inaccurate, as the appellant was still
on probation at the beginning of the 7-year period.
The appellant argues that the agency failed to prove the element of intent
required for a charge of falsification. However, the agency did not charge the
appellant with falsification, but rather submission of inaccurate information. 5
Contrary to the initial decision, this charge does not involve an element of intent.
See Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 14 (2014). As
it is undisputed that the appellant provided inaccurate information on the form,
we agree with the administrative judge that the agency proved the charge.
The appellant’s whistleblower retaliation claim is not subject to a higher burden
of proof under 5 U.S.C. § 2302(f)(2).
On December 12, 2017, Congress passed the National Defense
Authorization Act of Fiscal Year 2018 (“2018 NDAA”), Pub. L. No. 115-91,
the appellant has not shown that he suffered prejudice as a result.
5
We find nothing in the language of the proposal or decision letter to indicate that the
charge should be construed as a charge of falsification. Cf. Washington v. Department
of Defense, 2016 WL 3541236, Final Order (June 28, 2016), ¶ 9 (finding that the
administrative judge properly construed a charge of Submission of Inaccurate
Documents as a falsification charge where the reasons stated in the decision letter
exceeded the mere submission of inaccurate documents and encompassed “failure to
reveal the truth behind [the appellant’s] actions” and “the submission of false,
fictitious, or fraudulent claims”).
5
131 Stat. 1283, amending the language of 5 U.S.C. § 2302(f)(2). 2018 NDAA,
§ 1097. The revised provision reads as follows:
If a disclosure is made during the normal course of duties of an
employee, the principal job function of whom is to regularly
investigate and disclose wrongdoing (referred to in this paragraph as
the “disclosing employee”), the disclosure shall not be excluded from
subsection (b)(8) if the disclosing employee demonstrates that an
employee who has the authority to take, direct other individuals to
take, recommend, or approve any personnel action with respect to the
disclosing employee took, failed to take, or threatened to take or fail
to take a personnel action with respect to the disclosing employee in
reprisal for the disclosure made by the disclosing employee.
5 U.S.C. § 2302(f)(2) (emphasis added). As the Board held in Salazar v.
Department of Veterans Affairs, 2022 MPSB 42, ¶¶ 13-14, 22, the effect of this
amendment to 5 U.S.C. § 2302(f)(2) is that disclosures made in the normal course
of duties of an employee whose principal job function is not to regularly
investigate and disclose wrongdoing fall under the generally applicable 5 U.S.C.
§ 2302(b)(8), and are not subject to the requirement of proving actual reprisal in
5 U.S.C. § 2302(f)(2). The Board further found that the 2018 NDAA’s version of
5 U.S.C. § 2302(f)(2) may be applied retroactively. Salazar, 2022 MPSB 42,
¶ 21.
Here, it is undisputed that the appellant's disclosures were made to his
supervisor in the normal course of his duties. However, the agency does not
allege, nor is there evidence in the record establishing, that the appellant's
principal job function is to regularly investigate and disclose wrongdoing. To the
contrary, the appellant’s position description states that the “primary purpose of
this position is to operate boom cranes and marine travel lifts in support of USCG
activities within the Naval Engineering Support Units of the Industrial Operations
Division.” IAF, Tab 8 at 20. Thus, contrary to the administrative judge’s
analysis, the additional evidentiary burden under § 2302(f)(2) does not apply to
the appellant. Rather, the appellant need only prove only that he had a reasonable
belief his disclosure evidenced a violation of law, rule, or regulation in order to
6
satisfy his burden of proving he made a protected disclosure under § 2302(b)(8).
The administrative judge found, and the agency does not dispute, that the
appellant did make a protected disclosure of a substantial and specific danger to
public health or safety. ID at 17 (“It appears undisputed that the appellant made
disclosures regarding specific safety concerns that a reasonable person in his
position would likely believe evidenced a substantial and specific danger.”).
The appellant established that his protected disclosures were a contributing factor
in the agency’s decision to remove him.
The next question to be decided is whether the appellant’s protected
disclosures were a contributing factor in the agency’s decision to remove him.
The most common way of proving that a disclosure was a contributing factor in a
personnel action is the “knowledge/timing” test. Wadhwa v. Department of
Veterans Affairs, 110 M.S.P.R. 615, ¶ 12, aff'd per curiam, 353 F. App'x 435
(Fed. Cir. 2009). Under that test, an appellant can prove the contributing factor
element through evidence that the official taking the personnel action knew of the
whistleblowing disclosure and took the personnel action within a period of time
such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action. 6 Id.; see 5 U.S.C. § 1221(e)(1).
Here, both the proposing and deciding officials testified that they were
aware of at least some of the appellant’s safety disclosures, although they were
not the direct recipients of those disclosures. Hearing Recording, Track 5
(testimony of the proposing official, on direct), Track 6 (testimony of the
deciding official, on direct). Moreover, the appellant’s disclosures, which took
place between February 2020 and January 2021, were close enough in time to the
6
The knowledge/timing test is not the only way for an appellant to satisfy the
contributing factor standard. Dorney v. Department of the Army, 117 M.S.P.R. 480,
¶ 14 (2012). If an administrative judge determines that an appellant has failed to satisfy
the knowledge/timing test, she should consider other evidence, such as (1) evidence
pertaining to the strength or weakness of the agency’s reasons for taking the personnel
action; (2) whether the whistleblowing was personally directed at the proposing or
deciding officials; and (3) whether these individuals had a desire or motive to retaliate
against the appellant. Id.
7
appellant’s removal that a reasonable person could conclude that they were a
contributing factor in the action. See Wilson v. Department of Veterans Affairs,
2022 MSPB 7, ¶ 41 (holding that personnel actions occurring as late as 1 to
2 years after the protected disclosures are sufficient to meet the timing portion of
the test). Accordingly, we find that the appellant has established a prima facie
case of whistleblower retaliation.
We remand the case for a new finding on whether the agency proved by clear and
convincing evidence that it would have removed the appellant absent his
protected disclosures.
When an appellant makes out a prima facie case of whistleblower reprisal,
the agency has the opportunity to prove, by clear and convincing evidence, that it
would have taken the same personnel action in the absence of the protected
disclosure or activity. 5 U.S.C. § 1221(e)(1)-(2); Lu v. Department of Homeland
Security, 122 M.S.P.R. 335, ¶ 7 (2015). Here, after finding that the appellant
failed to establish a prima facie case of whistleblower reprisal, the administrative
judge further found that the agency proved by clear and convincing evidence that
it would have removed him even in the absence of his disclosure. However,
under 5 U.S.C. § 1221(e)(2), the Board may not proceed to the clear and
convincing test unless it has first made a finding that the appellant established his
prima facie case. Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154,
¶ 19 n.10 (2014), aff'd, 623 F. App'x 1016 (Fed. Cir. 2015); disagreed with on
other grounds by Delgado v. Merit Systems Protection Board , 880 F.3d 913 (Fed.
Cir. 2018). Accordingly, because the administrative judge found that the
appellant failed to establish a prima facie case of whistleblower reprisal, it was
inappropriate for her to proceed to the clear and convincing test. We therefore
vacate that portion of the initial decision. See Scoggins v. Department of the
Army, 123 M.S.P.R. 592, ¶ 28 (2016). However, given our finding on review that
the appellant has established a prima facie case of whistleblower reprisal, it is
now appropriate to address whether the agency has shown by clear and
8
convincing evidence that it would have taken the same actions in the absence of
his protected disclosures.
In determining whether the agency has met its burden of proving by clear
and convincing evidence that it would have taken the same personnel action in the
absence of the appellant’s whistleblowing, the following factors should be
considered: (1) the strength of the agency’s evidence in support of its personnel
action; (2) the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the decision; and (3) any evidence that the
agency takes similar actions against employees who are not otherwise
whistleblowers but who are otherwise similarly situated. Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); Parikh v. Department of
Veterans Affairs, 116 M.S.P.R. 197, ¶ 36 (2011). The Board considers all of the
relevant evidence, including evidence that supports the agency’s case and the
evidence that detracts from it. Soto v. Department of Veterans Affairs,
2022 M.S.P.R. 6, ¶ 11; see Whitmore v. Department of Labor, 680 F.3d 1353,
1368 (Fed. Cir. 2012).
In her premature analysis of the “clear and convincing” evidence test, the
administrative judge did not specifically address all three factors identified in
Carr, 185 F.3d at 1323. Nor does it appear that she considered all of the relevant
evidence as a whole. For example, in assessing the existence of a retaliatory
motive on the part of the responsible agency officials, the administrative judge
considered only whether those officials were personally implicated by the
disclosures or suffered disciplinary action as a result. This was an erroneously
restrictive view of the second Carr factor. See Whitmore, 60 F.3d at 1370
(observing that “[t]hose responsible for the agency’s performance overall may
well be motivated to retaliate even if they are not directly implicated by the
disclosures . . . as the criticism reflects on them in their capacities as managers
and employees”).
9
It is therefore necessary to reconsider whether the agency has met its
burden of proof. We find the administrative judge is in the best position to do so
because she is the one who heard the live testimony and made credibility
determinations. Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 37
(2013). On remand, the administrative judge should specifically address all three
Carr factors and consider all the relevant evidence as a whole, including both the
evidence that supports the agency’s case and the evidence that detracts from it.
See id.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. 7
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.