# Alvin Stewart v. Department of Justice

> Merit Systems Protection Board · April 30, 2024

URL: https://www.frixlaw.com/law-library/cases/9965062

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** April 30, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9965062

## How later opinions describe it (automated extraction)

- 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

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ALVIN DEREK STEWART, DOCKET NUMBER
Appellant, AT-0752-17-0123-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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.
3

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.
4

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

2
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).
5

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
6

“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
7

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
8

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
3
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.
9

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
4
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.
10

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.
5
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.
11

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
12

(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.
13

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
14

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
6
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.
15

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).
16

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
17

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.
18

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
19

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
20

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
21

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,

7
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.
22

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

8
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.
23

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
24

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
25

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
9
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.
26

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.
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9965062. Public record. Not legal advice.