Opinion

Alvin Stewart v. Department of Justice

Court: Merit Systems Protection Board
Filed: Apr 30, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

holding that, when an administrative judge has held a hearing and has made credibility determinations that were explicitly or implicitly based on the witnesses’ demeanor while testifying, the Board generally must defer to those credibility determinations

How later courts described this case

holding that, when an administrative judge has held a hearing and has made credibility determinations that were explicitly or implicitly based on the witnesses’ demeanor while testifying, the Board generally must defer to those credibility determinations
observing that the Board generally must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALVIN DEREK STEWART, DOCKET NUMBER

Appellant, AT-0752-17-0123-I-1

DEPARTMENT OF JUSTICE, DATE: April 30, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James E. Bankston , Florence, Alabama, for the appellant.

Tiane Doman , Esquire, and Katherine H. Reilly , Esquire, Falls Church,

Virginia, for the agency.

Sandy Reinfurt , Esquire, Washington, D.C., 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

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

(1) to address a finding made by the administrative judge related to the agency’s

charge and (2) to clarify the basis for finding that the appellant did not prove his

claims of disability discrimination or Title VII discrimination and retaliation, we

AFFIRM the initial decision.

BACKGROUND

The appellant was employed by the agency as a legal assistant and was

assigned to the Orlando Immigration Court (OIC) in Orlando, Florida. Initial

Appeal File (IAF), Tab 13 at 67. During the period between February and early

April 2016, he referred to his first-level supervisor as a “spy” and “Grinch,”

stated “she’s outta here,” or words to that effect, mocked and laughed at her, and

blocked her in the hallway. IAF, Tab 10 at 47-48. He also referred to his

assignment to a different supervisor as “emancipation” that was occurring

proximate to “Martin Luther King’s birthday” in comments to a coworker. Id.

at 48. Based on these incidents, the agency proposed his removal for

inappropriate conduct with eight specifications. Id. at 46-51. After the appellant

provided a written and oral reply to the proposal, the deciding official issued a

decision removing him from Federal service, effective May 14, 2016. IAF, Tab 1

at 14-19, Tab 13 at 67.

The appellant appealed his removal to the Board, arguing that it was the

result of discrimination based on his disability, race, national origin, and sex.

IAF, Tabs 1, 41. He also argued that the agency retaliated against him for equal

employment opportunity (EEO) and whistleblowing activity, violated his due

process rights, and committed harmful procedural error. IAF, Tabs 41, 70.

After holding a 4-day hearing, IAF, Tabs 72-74, 85, the administrative

judge issued an 83-page initial decision finding that the agency proved all eight

specifications of the charge. IAF, Tab 100, Initial Decision (ID) at 18-35. He

determined that the appellant’s removal was reasonable and promoted the

efficiency of the service. ID 35-36. He also found that the appellant failed to

prove his affirmative defenses of an alleged due process violation, harmful

procedural error, discrimination, and retaliation for engaging in EEO activity. ID

at 36-57. Further, although he found that the appellant proved that he engaged in

protected activity under the Whistleblower Protection Enhancement Act of 2012

(WPEA) that was a contributing factor to his removal, he concluded that the

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

that activity. ID at 57-76.

The appellant has filed a petition for review, wherein he contests the

administrative judge’s credibility findings and argues that the administrative

judge erred in finding that he failed to prove any of his affirmative defenses.

Petition for Review (PFR) File, Tab 1 at 8-9, 12-16, 18-22. He also argues that

the administrative judge abused his discretion in denying the appellant’s motions

for a protective order and to reopen the record, and in granting the agency’s

request for rebuttal witness testimony while denying his request. Id. at 10, 16-18.

He further argues that the atmosphere of the proceedings created a bias against

him, id. at 9-10, and that he has new and material evidence that supports his

claims, id. at 16-18, 29-34. The agency has filed a response. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly found that the agency proved the charge of

inappropriate conduct by preponderant evidence.

Similar to a charge of conduct unbecoming a Federal employee and a

charge of unacceptable conduct, inappropriate conduct is a generic charge and has

no specific elements of proof; the agency establishes the charge by proving that

the appellant committed the acts alleged under this broad label and that the

conduct was improper, unsuitable, or detracted from the appellant’s character or

reputation. See Canada v. Department of Homeland Security, 113 M.S.P.R. 509,

¶ 9 (2010) (setting forth this test as to charges of conduct unbecoming and

improper conduct); see also Miles v. Department of the Army, 55 M.S.P.R. 633,

637 (1992) (finding that an appellant’s conduct of running over a deer with a

Government vehicle was, under the circumstances, conduct unbecoming a Federal

employee because, at the very least, it was unsuitable and tended to detract from

his character). Generally, an agency is required to prove its charges in an adverse

action appeal by preponderant evidence. 2 5 U.S.C. § 7701(c)(1)(B).

In seven of the eight specifications of the inappropriate conduct charge, the

agency alleged that the appellant engaged in misconduct directed at his first-level

supervisor. IAF, Tab 10 at 47-48. The remaining specification related to a

comment he made to a coworker as to his “emancipation” from this supervisor.

Id. At the hearing, the appellant, his first-level supervisor, and a coworker who

overheard the appellant’s comments as to his “emancipation,” among others,

testified regarding the allegations. IAF, Tab 72, June 13, 2017 Hearing Compact

Disc (HCD1) (testimony of the appellant’s first-level supervisor); IAF, Tab 73,

June 14, 2017 Hearing Compact Disc (HCD2) (testimony of the appellant’s

coworker); IAF, Tab 74, June 15, 2017 Hearing Compact Disc (HCD3) (testimony

of the appellant). The appellant’s supervisor testified regarding her recollection

A preponderance of the evidence is that degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

of the incidents detailed in the proposed removal, and the appellant generally

denied the alleged misconduct in his testimony. HCD1 (testimony of the

appellant’s first-level supervisor); HCD3 (testimony of the appellant).

When, as here, there is conflicting testimony concerning the appellant’s

conduct, and it is impossible to believe the testimony of witnesses on both sides,

an administrative judge must make credibility determinations to properly resolve

the case. Vicente v. Department of the Army, 87 M.S.P.R. 80, ¶ 7 (2000). In the

initial decision, the administrative judge assessed the credibility of each witness’s

testimony as it related to each specification pursuant to the factors set forth in

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 30-31. In

doing so, he relied heavily on the witnesses’ demeanors. ID at 31-33. He also

considered whether the record included prior statements or documentation

consistent with the testimony provided. ID at 31-36. He concluded that the

appellant’s supervisor was a more credible witness. Id. He also concluded that

the witness who overheard the conversation as to “emancipation” was more

credible than the appellant and the coworker with whom he had the conversation,

who also testified. Id. Based primarily on these credibility determinations, the

administrative judge concluded that the agency met its burden to prove the charge

by preponderant evidence. Id.

On review, the appellant generally argues that the administrative judge

wrongfully credited the “deceptive demeanor” of his supervisor, who “used a

deceptive emotional display to deceive the [administrative judge] from using

good judgement.” PFR File, Tab 1 at 7-8. He points to a number of factors

weighed by the administrative judge in assessing the credibility of the witnesses’

testimony, including the presence or lack of corroborating evidence and

witnesses, and the witnesses’ potential bias. Id. at 7-9, 15; ID at 30-36. We

decline to disturb the administrative judge’s findings. We discern nothing

improper, for example, in the administrative judge’s finding that the credible

testimony of the appellant’s first-level supervisor that the appellant called her a

“spy” was supported by her consistent account in a contemporaneous email she

sent to the appellant’s second-level supervisor. ID at 31; IAF, Tab 10 at 108; see

Hillen, 35 M.S.P.R. at 458 (setting forth the consistency of a witness’s version of

events with other evidence as a relevant factor in assessing witness credibility).

Further, we discern no basis to disturb the administrative judge’s

demeanor-based credibility determination that the appellant’s supervisor’s

account of this incident was more credible than those of the appellant and his

corroborating witness. ID at 31-33; see Haebe v. Department of Justice, 288 F.3d

1288, 1301 (Fed. Cir. 2002) (observing that the Board generally must give

deference to an administrative judge’s credibility determinations when they are

based, explicitly or implicitly, on the observation of the demeanor of witnesses

testifying at a hearing). The appellant’s attempts on review to reweigh this

evidence are unpersuasive. PFR File, Tab 1 at 8-9; see Crosby v. U.S. Postal

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

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

drew appropriate inferences, and made reasoned conclusions on issues of

credibility); Broughton v. Department of Health & Human Services , 33 M.S.P.R.

357, 359 (1987) (same). The appellant’s other challenges to the administrative

judge’s findings that the agency proved the facts underlying specifications 1

through 7 are similarly unavailing. PFR File, Tab 1 at 8-9, 15-16.

In specification 8, the agency alleged that, on or about April 7, 2016, the

appellant blocked his first-level supervisor in the hallway and that, when she said,

“excuse me,” he did not move. IAF, Tab 10 at 48. The appellant argues on

review that the agency failed to prove the actions described therein. PFR File,

Tab 1 at 12-13. He argues that his standing restrictions, which were necessary to

accommodate his disabilities, would not have allowed him to stand long enough

for his first-level supervisor to have stated “excuse me.” Id. In finding that the

agency proved this specification, the administrative judge credited the appellant’s

first-level supervisor’s testimony, which recalled the incident as described, and

discredited the appellant’s testimony as evasive. ID at 27-28, 35. We find that

the appellant’s assertion that his disability would have prevented him from

engaging in the conduct alleged in specification 8 does not constitute a

“sufficiently sound” reason to disturb the administrative judge’s credibility-based

findings regarding this specification. ID at 35; see Haebe, 288 F.3d at 1301. We

likewise find the appellant’s remaining challenges to the administrative judge’s

credibility-based findings unavailing.

Regarding the appropriateness of the charged misconduct, the

administrative judge found that the appellant’s proven misconduct was improper

as charged, characterizing it as inappropriate, disrespectful, intimidating, and, as

to the comment regarding emancipation, racially inappropriate. ID at 32-35. The

appellant only disputes this finding as to his “emancipation” comment on review,

arguing that the word is not inappropriate because it carries “no pejorative

connotation” and is not a threat. PFR File, Tab 1 at 14. We find this argument to

be without merit. The underlying sentiment of the appellant’s comment

essentially suggests that his prior service under his first-level supervisor was

equivalent to slavery. As such, we agree with the administrative judge’s

assessment of the appropriateness of the comment, ID at 34, and we similarly find

that, in this particular context, the comment was inappropriate. We find it

unnecessary, in light of the agency’s use of the generic charge of inappropriate

conduct, to make a determination as to whether the comment was “racially”

inappropriate, as characterized by the administrative judge. Thus, we modify the

initial decision as to this finding, still agreeing with the administrative judge that

the agency proved the specification. See Boo v. Department of Homeland

Security, 122 M.S.P.R. 100, ¶ 14 (2014) (explaining that a generic charge, such as

conduct unbecoming, does not include an intent element). Accordingly, we find

that the administrative judge did not err in finding that the agency proved its

charge by preponderant evidence. 3

The appellant failed to prove any of his affirmative defenses.

Disability discrimination

The appellant claimed as an affirmative defense that he was discriminated

against based on his disabilities. IAF, Tab 41 at 5, 11-20. Specifically, he

asserted that the agency failed to accommodate his disabilities by requiring him

to lift boxes in violation of his medical restrictions and failing to provide him

with an ergonomic workstation. Id. at 13-15. The administrative judge found

that there was no dispute that the appellant was a qualified individual with a

disability, but further found that he failed to “connect[] his removal to his

disability.” ID at 41-42. The administrative judge concluded that “the appellant

failed to establish by a preponderance of the evidence that the agency’s decision

to remove him was motivated by discrimination on the basis of his disabilities.”

ID at 42. On review, neither party appears to dispute these findings.

The Rehabilitation Act requires an agency to provide reasonable

accommodation to the known physical or mental limitations of an otherwise

qualified individual with a disability unless the agency can show that

accommodation would cause an undue hardship on its business operations.

Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014). However, an

employee who engages in misconduct is not “otherwise qualified.” Burton v. U.S.

Postal Service, 112 M.S.P.R. 115, ¶ 17 (2009); Laniewicz v. Department of

Veterans Affairs, 83 M.S.P.R. 477, ¶ 8 (1999). Because we agree with the

administrative judge that the agency proved that the appellant engaged in

misconduct, we modify the initial decision to find that the appellant failed to

show that he was a qualified individual with a disability, and we affirm the

On review, the appellant does not challenge the administrative judge’s findings that

the agency met its burden to prove a nexus between its action and the efficiency of the

service, and that the penalty was within the tolerable bounds of reasonableness. ID

at 35-36. We discern no reason to disturb these findings.

administrative judge’s finding that he failed to prove his disability discrimination

affirmative defense.

Prohibited discrimination and reprisal for engaging in protected

EEO activity

The appellant also claimed below that the agency’s decision to remove him

was motivated by discrimination on the basis of his sex, race, color, and national

origin, and that the agency retaliated against him for engaging in protected EEO

activity. 4 IAF, Tab 41 at 5, 11-12, 22-30. When an appellant asserts an

affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e-16,

the Board first will inquire whether the appellant has shown by preponderant

evidence that the prohibited consideration was a motivating factor in the

contested personnel action. Pridgen v. Office of Management and Budget,

2022 MSPB 31, ¶¶ 20-21.

In the initial decision, the administrative judge discussed the various types

of direct and circumstantial evidence and concluded that the appellant failed to

prove his discrimination and non-whistleblowing retaliation affirmative defenses.

ID at 42-57. The Board has since clarified that administrative judges should not

separate “direct” from “indirect” evidence; rather, the dispositive inquiry is

whether the appellant has shown by preponderant evidence that the prohibited

consideration was a motivating factor in the contested personnel action. Pridgen,

2022 MSPB 31, ¶¶ 23-24. Here, the administrative judge discussed the

distinction between direct and circumstantial evidence, ID at 42-44, but he did

not disregard any evidence because it was not direct or circumstantial, ID

at 44-57. Moreover, the administrative judge properly considered the

documentary and testimonial evidence as a whole and concluded that the

appellant failed to present sufficient evidence to establish that prohibited

discrimination or retaliation for non-whistleblowing activity was a motivating

Because the appellant does not appear to directly challenge any of the administrative

judge’s findings on review regarding these claims, we will not discuss them at length

herein.

factor in the agency’s decision to remove him. ID at 44-57. Therefore, we

modify the initial decision to clarify that the appellant failed to present evidence

of discriminatory motive, regardless of how such evidence is characterized. The

appellant’s substantive rights are not prejudiced by this clarification because he

has failed to prove these claims both below and on review, regardless of the

clarification. 5 See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984).

On review, the appellant does not appear to challenge the administrative

judge’s assessment of the evidence with any meaningful specificity. For

example, he generally claims that the administrative judge “practically ignored”

his discrimination claims, but the administrative judge’s 16-page analysis shows

otherwise. PFR File, Tab 1 at 15; ID at 42-57. Further, he disputes the

administrative judge’s finding that his supervisors were unaware of his numerous

EEO complaints. PFR File, Tab 1 at 13-14. We are not persuaded by the

appellant’s arguments. The administrative judge considered the relevant evidence

and argument and found that the appellant failed to prove that his EEO activity

was a motivating factor in his removal. ID at 45-57. To the extent that the

appellant’s challenges to the administrative judge’s credibility findings on review

constitute a challenge to the analysis of his EEO retaliation claims, we must defer

to those determinations absent a “sufficiently sound” reason to disturb those

conclusions, and the appellant has not presented such a reason. See Haebe,

288 F.3d at 1301.

To the extent that one or more of the appellant’s EEO complaints contain allegations

of retaliation against the appellant for engaging in protected activity as to his

disabilities, IAF, Tab 41 at 44, we clarified the standard of causation for such claims in

Pridgen, 2022 MSPB 31, ¶¶ 31-35, wherein we found that an appellant must show that

an agency’s retaliatory action(s) would have not occurred but for an appellant’s

protected activity. Here, the administrative judge applied the “motivating factor”

analysis to the appellant’s discrimination and EEO retaliation claims. ID at 42-44, 57.

Because we agree with the administrative judge’s conclusion that the appellant failed to

meet the lower “motivating factor” standard, we find that an analysis under the “but

for” standard would not result in a different outcome. Thus, the appellant’s substantive

rights were not prejudiced by any error. See Panter, 22 M.S.P.R. at 282.

Whistleblower reprisal

The appellant also asserted reprisal for activities and disclosures protected

by the WPEA as an affirmative defense. IAF, Tab 41 at 22-32. Once an agency

proves an adverse action case by preponderant evidence, an appellant asserting an

affirmative defense of reprisal for such disclosures and activity must show by

preponderant evidence that he made a protected disclosure or engaged in

protected activity and that the disclosure or activity was a contributing factor in

the adverse action. Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 19

(2013); see Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 12 (2015)

(recognizing that, under the WPEA, an appellant may raise an affirmative defense

of whistleblower reprisal based on protected activity under 5 U.S.C. § 2302(b)(9)

(A)(i), (B), (C), and (D)). If the appellant makes this prima facie showing, the

burden of persuasion shifts to the agency to show by clear and convincing

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

protected disclosure or activity. 5 U.S.C. § 1221(e)(2); Alarid, 122 M.S.P.R. 600,

¶ 14.

In the initial decision, the administrative judge found that the appellant

failed to make any protected disclosures, ID at 61-70, but that, because he had

filed previous Board appeals and numerous complaints with the Office of Special

Counsel (OSC) and the Office of the Inspector General (OIG), he engaged in

protected activity, ID at 60-61 (citing 5 U.S.C. § 2302(b)(9)(A)(i), (C)). He

further found that, because the deciding official was aware of this activity and the

filings all occurred within a period of slightly more than a year prior to the

decision to remove the appellant, the appellant had established that his protected

whistleblowing activity was a contributing factor in the agency’s decision to

remove him. ID at 72. Nonetheless, the administrative judge found that the

agency proved by clear and convincing evidence that it would have removed the

appellant even in the absence of his protected whistleblowing activity. ID at 72

(citing Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir.

1999)).

Although the appellant’s challenges on review to the administrative judge’s

findings regarding his whistleblower claims are not entirely clear, it appears that

he is arguing that his disclosure of an alleged affair between his first- and second-

level supervisors constituted a protected disclosure. PFR File, Tab 1 at 14-15;

IAF, Tab 41 at 4. To be considered a protected disclosure under 5 U.S.C.

§ 2302(b)(8)(A), an appellant must prove that he reasonably believed the

disclosed information evidenced a violation of 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. 5 U.S.C. § 2302(b)(8)(A).

After a thorough 10-page analysis of witness testimony and documentary

evidence, the administrative judge found that the appellant failed to establish that

he reasonably believed that his supervisors were involved in an inappropriate

personal relationship, ID at 62, 64, and that, even if he had proven that he

reasonably believed that his supervisors were engaged in an affair, he also failed

to prove that he had a reasonable belief that the alleged inappropriate relationship

evidenced wrongdoing under 5 U.S.C. § 2302(b)(8)(A), ID at 70. We agree with

the administrative judge that the appellant’s disclosure of an alleged

inappropriate relationship does not evidence one of the categories of wrongdoing

described in 5 U.S.C. § 2302(b)(8). See Ayers v. Department of the Army,

123 M.S.P.R. 11, ¶¶ 23-24 (2015) (holding that an employee’s allegation of an

improper relationship between her supervisors without any allegation of

preferential treatment or violation of law, rule, or regulation, was not a protected

disclosure and, thus, could not form the basis of an affirmative defense of

whistleblower reprisal). Further, the appellant has not articulated a specific

challenge to these findings beyond his general claim that the disclosure was

protected, PFR File, Tab 1 at 14-15, and we discern no reason to disturb the

initial decision in this regard, see Weaver v. Department of the Navy, 2 M.S.P.R.

129, 133-34 (1980) (explaining that the Board will not undertake a complete

review of the record unless the appellant identifies specific evidence in the record

which demonstrates error), review denied, 669 F.2d 613 (9th Cir. 1982) (per

curiam).

The appellant also appears to argue that the administrative judge erred in

his assessment of the existence and strength of any motive to retaliate on the part

of agency officials who were involved in the decision to remove the appellant.

PFR File, Tab 1 at 13-14. Specifically, he argues that the administrative judge

improperly found that there was no evidence to support the appellant’s claim that

his first- and second-level supervisors were aware of his protected whistleblowing

activity prior to the issuance of the proposed removal because both supervisors

should have been aware of his EEO complaints. Id.; ID at 74.

The administrative judge’s reference to the appellant’s protected activity

concerns his prior Board appeals and OIG and OSC complaints; he did not

determine whether any of the appellant’s EEO complaints were subject to the

WPEA. ID at 60-61, 71. The Board has held that engaging in EEO activity is

considered protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) when the

complaint seeks to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(8).

5 U.S.C. §§ 1221(a), 2302(b)(9)(A); Bishop v. Department of Agriculture,

2022 MSPB 28, ¶ 15. We have reviewed the EEO complaints in the record, and it

appears that, in his EEO complaint filed on April 19, 2016, the appellant alleged

that agency officials engaged in prohibited personnel practices such as making

false allegations against him and abusing their authority in reprisal for his prior

EEO, OIG, and OSC complaints. IAF, Tab 56 at 6. To the extent that the

appellant alleges that this EEO complaint constitutes protected activity under the

WPEA, we are without jurisdiction to review this claim. An allegation of reprisal

for engaging in protected activity, as opposed to reprisal for making protected

disclosures, is not actionable in an IRA appeal. See Mudd v. Department of

Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013) (explaining that the Board lacks

IRA jurisdiction over a claim of reprisal for filing a claim that did not seek to

remedy whistleblower reprisal). Therefore, we find that the filing of the

appellant’s April 19, 2016 EEO complaint does not constitute protected activity. 6

Nonetheless, because the administrative judge found that the appellant

established a prima facie case of whistleblower reprisal with respect to his OSC

and OIG complaints and two prior Board appeals, he conducted an analysis to

determine whether the agency proved by clear and convincing evidence that it

would have taken the same personnel action in the absence of the whistleblowing.

ID at 72-76; see Carr, 185 F.3d at 1323. In making this determination, the Board

considers the strength of the agency’s evidence in support of its action, the

existence and strength of any motive to retaliate on the part of the agency

officials who were involved in the decision, and any evidence that the agency

takes similar actions against employees who are not whistleblowers but who are

otherwise similarly situated. Carr, 185 F.3d at 1323.

In analyzing agency officials’ motive to retaliate—the only portion of the

Carr factor analysis that the appellant appears to challenge on review—the

administrative judge observed that the deciding official was not implicated in the

appellant’s whistleblowing activity. ID at 73. The administrative judge

concluded that, although he may have had some institutional motive to retaliate

against the appellant as an agency manager, see Whitmore v. Department of

Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012), the record did not support the

conclusion that he had a significant motive to retaliate against the appellant, ID

During the pendency of this appeal, the National Defense Authorization Act for Fiscal

Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on

December 12, 2017. Section 1097 of the NDAA amended various provisions of title 5

of the United States Code. These amendments expanded protected activity to include

complaints to any agency “component responsible for internal investigation or review.”

Pub. L. No. 115-91, 1097(c)(1)(A), 131 Stat. at 1618 (codified at 5 U.S.C. § 2302(b)(9)

(C)). The events related to this appeal occurred in 2016, before the enactment of the

NDAA, and the Board has held that the amendment to 5 U.S.C. § 2302(b)(9)(C) is not

retroactive. See Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 29-33, aff’d, No.

2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023). Thus, we do not consider here

the impact of section 1097 on this appeal.

at 73. The deciding official testified at the hearing that none of the appellant’s

OIG, OSC, or EEO complaints and Board appeals had any effect on his decision

and that he would have removed the appellant in the absence of those claims.

HCD2 (testimony of the deciding official); ID at 71-72. We defer to the

administrative judge’s implicit demeanor-based credibility finding. See Purifoy

v. Department of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016)

(holding that, when an administrative judge has held a hearing and has made

credibility determinations that were explicitly or implicitly based on the

witnesses’ demeanor while testifying, the Board generally must defer to those

credibility determinations). Because we agree with the remainder of the

administrative judge’s Carr factor analysis, ID at 72-76, we will not disturb his

ultimate conclusion that the agency proved by clear and convincing evidence that

it would have removed the appellant even in the absence of his protected activity.

Due process violations

The appellant also argued as an affirmative defense that the deciding

official violated his due process rights by considering emails between his first-

and second-level supervisors, as well as other agency officials, regarding the

allegations against him. IAF, Tab 70 at 6-12; PFR File, Tab 1 at 21. Although an

appellant’s right to due process can extend to ex parte information provided to a

deciding official, only ex parte communications that introduce new and material

evidence to the deciding official constitute due process violations. Ward v. U.S.

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

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

employee’s due process rights are not violated when he receives or is made aware

of, but does not request, all of the materials underlying his proposed removal.

See McNab v. Department of the Army, 121 M.S.P.R. 661, ¶ 18 (2014) (finding

that no due process violation occurred when an appellant was made aware of, but

did not request, agency materials supporting his proposed removal).

The administrative judge found that the emails in question were attached to

the notice of proposed removal that the agency served on the appellant. ID at 37.

Thus, he found that the appellant failed to establish by preponderant evidence that

the agency removed him from his position without affording him due process. ID

at 38. Although the appellant’s arguments on review are not a model of clarity, it

appears that he is reasserting his claim that the deciding official improperly relied

on emails to which he was not given an opportunity to respond. PFR File, Tab 1

at 20-21. We have reviewed the record, and we agree with the administrative

judge that the appellant was provided access to the emails upon receipt of the

proposal notice. IAF, Tab 10 at 46-51, 107-110, 115-124.

The appellant also appears to argue that the agency violated his due process

rights because the deciding official relied on documents that the appellant

received through a Freedom of Information Act (FOIA) request after the decision

letter was issued. PFR File, Tab 1 at 21; IAF, Tab 57 at 15-25. The documents in

question are emails the agency provided to the appellant with heavy redactions

for FOIA exceptions. IAF Tab 57 at 15-25. If they contain substantive

information, the appellant has not provided it and does not claim that he filed a

motion to compel below or that the agency improperly redacted the documents.

Thus, we discern no basis to conclude from these emails that the deciding official

received new and material information during his deliberations. Cf. Szejner v.

Office of Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005) (declining to

consider the appellant’s arguments on review that the agency failed to respond to

his discovery requests because he did not file a motion to compel below), aff’d,

167 F. App’x 217 (Fed. Cir. 2006).

The appellant also appears to argue on review that the agency violated his

due process rights because the deciding official was biased. PFR File, Tab 1

at 20-21. Specifically, he argues that the deciding official was improperly

influenced by the appellant’s first- and second-level supervisors. Id. To establish

a due process violation based on the identity of a deciding official, an appellant

must assert specific allegations indicating that the agency’s choice of deciding

official made the risk of unfairness to the appellant intolerably high. Holton v.

Department of the Navy, 123 M.S.P.R. 688, ¶ 30 (2016). The appellant has made

no such allegations.

Accordingly, we agree with the administrative judge that the appellant

failed to prove that the agency violated his due process rights.

Harmful procedural error

The appellant also argued as an affirmative defense that the agency

committed harmful procedural error by violating Department of Justice Policy

Memorandum 2015-04 when it failed to conduct an investigation into his

allegations of harassment by his supervisor, IAF, Tab 94 at 19; PFR File, Tab 1

at 22, and by failing to provide him with an opportunity to respond to the

allegations against him prior to the issuance of the proposed removal, IAF,

Tab 41 at 10; PFR File, Tab 1 at 20. For a procedural error to warrant reversal of

an agency action, the appellant must establish that the agency committed a

procedural error that likely had a harmful effect on the outcome of the case before

the agency. Powers v. Department of the Treasury, 86 M.S.P.R. 256, ¶ 10 (2000);

5 C.F.R. § 1201.56(c)(1).

The administrative judge considered the appellant’s arguments and found

that the policy was “essentially a statement describing the stance of the [agency]

regarding claims of harassment in the workplace [and] did not require the agency

to take any specific actions upon receiving a complaint of harassment.” ID

at 38-39. He further found that, to the extent the policy provides that the agency

will take swift corrective action against any agency employee who engages in

harassment, the appellant failed to establish that the agency determined that any

of the agency employees involved in the decision to remove him actually engaged

in harassment. ID at 39.

On review, the appellant reasserts this argument, PFR File, Tab 1 at 22, but

he has not provided any reason to disturb the administrative judge’s rulings.

Regardless of whether the agency violated the policy at issue, the appellant has

not shown that any error likely caused the agency to reach a different conclusion

in the removal proceedings from the one it would have reached in the absence or

cure of any error related to the policy. See Powers, 86 M.S.P.R. 256, ¶ 10;

5 C.F.R. § 1201.4(r). As such, we find no error in the administrative judge’s

ruling.

Regarding the appellant’s argument that he was not provided with an

opportunity to respond to the allegations against him prior to the issuance of the

proposal notice, the administrative judge found that he failed to establish that

there was any specific policy or regulation that required the agency to afford the

appellant an opportunity to respond to allegations of misconduct prior to issuing a

proposal to take adverse action against him. ID at 38. The appellant reasserts

this argument on review, but he has not pointed to any law, rule, or regulation

that requires an agency to provide such an opportunity before it issues a proposed

adverse action. To the extent he is alleging a violation of his right to respond to

the charges, this right attaches after the issuance of a proposed action but before a

final decision on that proposal is issued. See 5 U.S.C. § 7513(b); Cleveland

Board of Education v. Loudermill, 470 U.S. 532, 542-45 (1985).

Accordingly, we agree with the administrative judge that the appellant

failed to prove his affirmative defense of harmful error.

The administrative judge did not abuse his discretion in denying the appellant’s

motion for a protective order, allowing additional agency witnesses, or denying

the appellant’s requests for rebuttal witnesses and motion to reopen the record .

The appellant argues on review that the administrative judge abused his

discretion when he denied the appellant’s motion for a protective order to

“protect [his] witnesses from any forms of [a]gency witness tampering,

intimidation, threats, harassment, and retaliation for providing any true

testimony.” PFR File, Tab 1 at 10; IAF, Tab 67 at 4. The administrative judge

denied the motion, with the caveat that if, during the hearing, he formed the

impression that such an order was necessary, he would reconsider the ruling.

IAF, Tab 71. The appellant argues that the administrative judge abused his

discretion in denying this motion because it directly affected his witnesses’

willingness to provide accurate testimony due to fear of retaliation. PFR File,

Tab 1 at 10. The appellant also argues on review that the administrative judge

abused his discretion when he approved the agency’s rebuttal witnesses from the

Social Security Administration but denied his additional witness requests and

when he denied the appellant’s motion to reopen the record for consideration of

purportedly new evidence discovered after the record closed below but before the

initial decision was issued. Id. at 16-18; IAF, Tab 94 at 36-37.

We find that all of these decisions fall within the administrative judge’s

broad scope of authority and discretion to control the proceedings before him.

5 C.F.R. § 1201.41(b)(8), (10), (14). A request for a protective order will not be

granted based on mere speculation. Pumphrey v. Department of Defense,

122 M.S.P.R. 186, ¶ 14 (2015). The appellant did not explain his request below,

and only speculates about potential wrongful acts by the agency on review. IAF,

Tab 67; PFR File, Tab 1 at 10. We find that the administrative judge properly

denied the appellant’s motion. IAF, Tab 71 at 2. Regarding the approval of the

agency’s rebuttal witnesses, the appellant argued that allowing these witnesses

was an abuse of discretion because they were only called to discredit his

testimony. PFR File, Tab 1 at 10-11; IAF, Tab 94 at 36-37. However, the Board

has treated impeachment evidence as a relevant consideration for an

administrative judge. See Heller v. Department of the Army, 36 M.S.P.R. 675,

680 (1988) (finding that agency evidence that is offered to show possible bias of

a witness and to rebut the testimony of a witness was relevant and properly

admitted). Moreover, in granting the agency’s request to call additional

witnesses, the administrative judge noted that the witnesses were unable to testify

during the earlier portion of the hearing due to time constraints. IAF, Tab 79

at 1 n.1. Based on the foregoing, we find that the administrative judge properly

exercised his discretion in controlling the proceedings. See 5 C.F.R. § 1201.41(b)

(8).

Regarding the appellant’s witness requests denied by the administrative

judge, we similarly find no abuse of discretion. Like the agency, the appellant

requested rebuttal witnesses for the similar purpose of impeaching other witness

testimony. IAF, Tab 78. However, the administrative judge denied the

appellant’s requested witnesses because each of them had already testified at the

hearing and had an opportunity to rebut any of the agency’s proffered evidence.

IAF, Tab 79 at 1 n.1. Because an administrative judge has the authority to

exclude testimony that he believes would be irrelevant, immaterial, or unduly

repetitious, we find the administrative judge’s ruling to be a proper exercise of

discretion. Parker v. Department of Veterans Affairs, 122 M.S.P.R. 353, ¶ 21

(2015); 5 C.F.R. § 1201.41(b)(10). Moreover, the appellant has not adequately or

clearly explained in his petition for review how testimony from these witnesses

might have changed the outcome of his appeal. PFR File, Tab 1 at 16-18. As

such, he does not articulate a basis to grant review. See Hulett v. Department of

the Navy, 120 M.S.P.R. 54, ¶ 5 n.2 (2013) (declining to grant review based on an

appellant’s claim that the administrative judge improperly curtailed his cross

examination of the deciding official because the appellant did not explain what

information he hoped to obtain or how it would affect the outcome of his appeal).

Regarding the appellant’s argument that the administrative judge erred

when he denied the appellant’s request to reopen the record to admit purportedly

new and material evidence, PFR File, Tab 1 at 16-17, we find no abuse of

discretion. After the hearing, the appellant filed a motion to submit new

evidence, including an unsworn statement by a coworker dated July 16, 2017, a

letter of counseling issued to that same coworker in July 2012, a copy of that

coworker’s annual performance rating for 2011, and copies of emails dated

September 7, 2010, and September 16, 2012. IAF, Tab 87. The administrative

judge denied the motion. ID at 16-17 n.9. He reasoned that the record on appeal

closed with the conclusion of the hearing, and the information sought to be

admitted was available before the record closed on July 14, 2017. Id.; see

5 C.F.R. § 1201.59(a), (c) (explaining that the record normally closes at the

conclusion of the hearing, after which only evidence or argument that was not

readily available or that rebuts the other party’s evidence or argument submitted

just before the record closed will be accepted). The appellant has not specifically

disputed that finding on review, and we decline to disturb it.

In sum, the appellant has provided no evidence or compelling argument to

support his claims that the administrative judge’s rulings extended beyond this

well-established discretion. See Pecard v. Department of Agriculture,

115 M.S.P.R. 31, ¶ 15 (2010) (stating that the abuse of discretion standard is a

very high standard and allows for great deference). Accordingly, we find that the

appellant has failed to show that the administrative judge abused his discretion or

committed reversible error. 7

The appellant has not presented any new and material evidence that warrants a

reversal of the initial decision.

On review, the appellant seeks to resubmit his coworker’s June 16, 2017

statement and also attaches what appear to be unsigned and undated notes from

this coworker. PFR File, Tab 1 at 17-18, 29-34. Because the information

contained in these documents concerns events predating the close of the record

below and the individual who authored them testified on the appellant’s behalf,

The appellant also argues on review that “the agency preset the atmosphere at the start

of the trial[] by inserting armed guards and posting them next to [the appellant] as if

[the appellant] was a criminal on trial and under arrest to influence [the administrative

judge] with the appearance that he was violent.” PFR File, Tab 1 at 9. To the extent

that the appellant is arguing that the administrative judge was either biased in

permitting the armed guards or that their presence caused the administrative judge to

become biased, we find the appellant’s claims insufficient. An administrative judge’s

conduct during the course of a Board proceeding warrants a new adjudication only if the

administrative judge’s comments or actions evidence “a deep-seated favoritism or

antagonism that would make fair judgment impossible.” Bieber v. Department of the

Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)). The appellant’s assertions here do not

meet this rigorous standard.

they provide no basis for granting review. See 5 C.F.R. § 1201.115(d) (providing

that the Board will grant a petition for review based on new evidence, and that to

constitute such evidence, the information contained in the documents, and not just

the documents themselves, must have been unavailable despite due diligence

when the record closed).

We have considered all of the appellant’s arguments on review but have

concluded that a different outcome is not warranted. Except as expressly

modified as outlined above, we affirm the initial decision and deny the

appellant’s petition for review.

NOTICE OF APPEAL RIGHTS 8

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

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

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.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 9 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

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

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.