Baldomero Rodriguez v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BALDOMERO RODRIGUEZ, DOCKET NUMBER

Appellant, DE-0752-18-0023-I-1

v.

DEPARTMENT OF THE ARMY, DATE: April 25, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Leticia Dominguez , Esquire, El Paso, Texas, for the appellant.

George Yu , White Sands Missile Range, New Mexico, 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

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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

supplement the initial decision regarding the appellant’s retaliation claim, we

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

The appellant was formerly a GS-9 Supervisory Security Guard at the

White Sands Missile Range. He was required, as a condition of employment, to

maintain certification under the agency’s Personnel Reliability Program (PRP).

Initial Appeal File (IAF), Tab 10 at 37. Following an investigation into

allegations of misconduct, the agency first temporarily, then permanently,

disqualified him from the PRP. Id. at 17-18, 28-29; IAF, Tab 12 at 11.

Following his permanent disqualification, the agency removed him effective

September 30, 2017, based on a charge of Failure to Meet a Condition of

Employment. IAF, Tab 10 at 11-15, 17-20, 27-29, 38; Tab 12 at 11. He appealed

and, after a hearing, the administrative judge issued an initial decision in which

he sustained the charge and found that the appellant failed to prove his

affirmative defenses of retaliation for equal employment opportunity activity and

harmful error; the agency proved nexus; there were no vacant positions for which

the appellant qualified to which he could be reassigned that did not require PRP

certification; and removal was within the tolerable bounds of reasonableness.

IAF, Tab 21, Initial Decision (ID) at 13-21.

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The appellant petitions for review of the initial decision. Petition for

Review (PFR) File, Tab 1. The agency responds in opposition to the petition for

review and the appellant replies to the agency’s response. PFR File, Tabs 3-4.

The agency proved its charge by preponderant evidence.

Adjudication of a removal appeal requires the Board to determine whether

the agency has proven the charge on which the removal is based and, when the

charge consists of the employing agency’s withdrawal or revocation of its

certification or other approval of the employee’s fitness or other qualifications to

hold his position, the Board’s authority generally extends to a review of the

merits of that withdrawal or revocation. Adams v. Department of the Army,

105 M.S.P.R. 50, ¶ 10 (2007), aff’d, 273 F. App’x. 947 (Fed. Cir. 2008). Thus,

under the circumstances of this appeal, the Board has authority to review the

appellant’s arguments regarding the agency’s decision to disqualify the appellant

from the PRP.

The appellant does not dispute that he committed the four acts that led to

his disqualification from the PRP. He contends that his infractions were all

relatively minor, that others had committed the same or similar offenses without

any serious consequences, and that none of his offenses merited his

disqualification. As the administrative judge correctly found, however, the

deciding official on the disqualification was concerned about the pattern of poor

judgment reflected by the aggregate effect of the appellant’s conduct rather than

the impact of any one instance of poor judgment alone. ID at 14-15; Hearing

Recording 1, Track 1 (testimony of the PRP deciding official). One other

supervisor committed one of the same acts as the appellant, but he did not have

multiple offenses as the appellant did. The deciding official on the

disqualification testified that he had never upheld the disqualification of an

employee for a single act, but that he would do so if the underlying act were

sufficiently serious. Id. He emphasized that, as to the appellant, it was not that

the individual acts were serious enough to warrant his disqualification from the

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PRP; it was the combined effect of those individual acts that demonstrated a

pattern of poor judgment and that was disqualifying. That pattern of poor

judgment was absent in the other employees who were investigated at the same

time as the appellant. We agree with the administrative judge that the agency

proved that the appellant failed to meet a condition of employment.

The appellant failed to prove his affirmative defense of harmful error.

The Board cannot sustain an agency’s decision in any case if the employee

shows harmful error in the application of the agency’s procedures in making its

decision. Doe v. Department of Justice, 123 M.S.P.R. 90, ¶ 7 (2015);

Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681 (1991).

Reversal of an action for harmful error is warranted where the procedural error,

whether regulatory or statutory, likely had a harmful effect upon the outcome of

the case before the agency. Stephen, 47 M.S.P.R. at 681; see Doe, 123 M.S.P.R.

90, ¶ 7.

The appellant contends that the agency committed harmful error in several

respects. First, he asserts that the agency erred when his second-line supervisor

initially issued the temporary disqualification, because that was a decision

committed by agency regulation to the “certifying official,” his first-line

supervisor. Petition for Review (PFR) File, Tab 1 at 9-10. The appellant is

correct. The administrative judge found, however, that the error was harmless;

the second-line supervisor was new and issued the temporary disqualification by

mistake. ID at 19. The agency swiftly corrected the mistake and the first-line

supervisor issued a proper temporary disqualification. ID at 19; IAF, Tab 10

at 36, Tab 12 at 10-11. The appellant contends on review that the error was not

harmless because the second-line supervisor’s disqualification memorandum

instructed the appellant not to report to the worksite, and the appellant’s violation

of this instruction was one of the reasons underlying his permanent

disqualification from the PRP. PFR File, Tab 1 at 9-10. The second-line

supervisor may have lacked the authority to disqualify the appellant from the

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PRP, but there is no indication that he lacked the authority to bar the appellant

from the work site. When the first-line supervisor reissued a proper temporary

disqualification, he neither rescinded nor reaffirmed the ban and bar, although he

did state that the appellant’s “access is restricted.” IAF, Tab 12 at 11. More

importantly, the appellant did not contend below that he considered the ban and

bar to be void because it was contained in the second-line supervisor’s

disqualification memorandum; he contended that he did not violate the

second-line supervisor’s instructions because he did not consider the

administrative building where he appeared to be part of the “work site” he was

not allowed to visit. IAF, Tab 10 at 25. The administrative judge correctly found

that the appellant has not shown that the outcome of his case likely would have

been different if the second-line supervisor had not mistakenly issued a temporary

disqualification memorandum before the first-line supervisor issued essentially

the same memorandum.

Second, the appellant contends that the first-line supervisor was not

permitted to conduct an independent investigation before issuing the permanent

disqualification memorandum. PFR File, Tab 1 at 7-9. The agency’s regulations

state that, as to temporary disqualifications, “The certifying official will promptly

investigate all circumstances that may impact the reliability of an individual.”

IAF, Tab 10 at 54, ¶ 2-29(b). There is no comparable investigation requirement

for permanent disqualifications. Id., ¶ 2-30. However, the regulations applying

generally to “Temporary and permanent removal from PRP duties,” provide that

“[i]t is not necessary to complete an investigation, to take disciplinary action

(either civil or military), or to complete other personnel actions before the

certifying official decides whether to disqualify or retain an individual in the

PRP. Determination of an individual’s reliability rests with the certifying

official.” Id. at 53, ¶ 2-27(b). Thus, contrary to the appellant’s assertion, the

first-line supervisor was not required to conduct an investigation prior to making

a decision on the appellant’s permanent disqualification, and the agency’s

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regulations explicitly contemplated that it might not be appropriate to do so. In

fact, the agency had already conducted an investigation, the first-line supervisor

had the opportunity to review the investigatory report and supporting evidence,

and the first-line supervisor had independent knowledge of all four incidents

underlying the disqualification. ID at 19. The administrative judge found, based

on his assessment of witness demeanor, that the first-line supervisor was not a

credible witness when he claimed that he needed more time to conduct his own

investigation. The appellant has not proffered a sufficiently sound reason for

setting aside the administrative judge’s demeanor-based credibility findings.

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

that where an administrative judge’s credibility determinations are based on the

observation of the demeanor of witnesses testifying at a hearing, the Board may

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

doing so).

Third, the appellant asserts that the second-line supervisor excessively

interfered with the issuance of the permanent disqualification memorandum. PFR

File, Tab 1 at 10-12. Specifically, he asserts, “the evidence shows that, if the

decision had been left up to [the first-line supervisor], . . . he might not have

recommended Appellant’s disqualification from the PRP.” Id. at 12. The

first-line supervisor’s first draft of the permanent disqualification memorandum

did not set forth the reasons for the disqualification and failed to meet the

minimum requirements for due process. Under the circumstances, it was entirely

appropriate for the second-line supervisor to step in to ensure that the first-line

supervisor issued a disqualification notice that met minimum standards of due

process. Compare IAF, Tab 10 at 27, with id. at 28-29. Otherwise, the first-line

supervisor simply seems to have been uncomfortable with his decision, but not

uncomfortable enough to attempt to make a different decision or to communicate

his discomfort to the deciding official who made the ultimate decision on the

disqualification. Even on review, the appellant does not argue that the first-line

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supervisor likely would not have recommended the appellant’s disqualification

but for pressure from the second-line supervisor; he only argues that he “might

not have” done so. Cf. Doe, 123 M.S.P.R. 90, ¶ 7 (holding that harmful error

cannot be presumed; an agency error is harmful only where the 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);

Stephen, 47 M.S.P.R. at 681, 685 (same). Given the highly equivocal nature of

the first-line supervisor’s testimony and the administrative judge’s finding that

the second-line supervisor was generally more credible than the first-line

supervisor, we agree with the administrative judge that the appellant did not show

that there was any improper command influence or any error that likely affected

the outcome of his case.

The appellant failed to show that his removal was based on retaliation for his

prior equal employment opportunity (EEO) activity.

Following the issuance of the initial decision, the Board clarified that a Federal

employee proves retaliation in violation of Title VII by establishing that

retaliation was a motivating factor in the challenged action. Pridgen v. Office of

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

found that the appellant failed to introduce any evidence showing that his prior

EEO activity was a motivating factor in the decision to remove him. ID at 16-19.

The appellant summarily claims on review that the agency was hostile to EEO

claims, PFR File, Tab 1 at 20, but he has not identified any factual or legal error

in the initial decision. We agree with the administrative judge’s finding that the

appellant failed to prove his affirmative defense of EEO retaliation. 2

We have considered the remainder of the arguments that the appellant

raises in his petition for review and find that none of them warrant an outcome

2

Because we affirm the administrative judge’s finding that the appellant failed to show

that any prohibited consideration was a motivating factor in the agency’s action, we

need not resolve the issue of whether the appellant proved that retaliation was a

“but-for” cause of the agency’s decision. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 33.

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different from that of the initial decision. Clay v. Department of the Army,

123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative

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

inferences, and made reasoned conclusions); Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 105-06 (1997) (same).

NOTICE OF APPEAL RIGHTS 3

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

3

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.

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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

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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

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(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. 4 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

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.

4

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.

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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.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.