Gregory Brown v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GREGORY L. BROWN, DOCKET NUMBER

Appellant, DA-0714-21-0218-I-1

v.

DEPARTMENT OF VETERANS DATE: May 2, 2024

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Daniel J. Gamino , Esquire, Oklahoma City, Oklahoma, for the appellant.

Joan M. Green , Esquire, Oklahoma City, Oklahoma, for the agency.

Shannon Yero , Garland, Texas, for the agency.

Tijuana D. Griffin , Little Rock, Arkansas, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

The agency has filed a petition for review of the initial decision,

which reversed the appellant’s removal pursuant to the Department of Veterans

Affairs Accountability and Whistleblower Protection Act of 2017 (VA

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A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

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Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat 862, 869-73 (2017)

(codified as amended at 38 U.S.C. § 714). For the reasons discussed below, we

GRANT the agency’s petition for review, VACATE the initial decision,

and REMAND the case to the Dallas Regional Office for further adjudication in

accordance with this Remand Order.

BACKGROUND

The appellant was employed as a GS-7 Lead Police Officer with the

Oklahoma City Veterans Affairs Medical Center’s Police Services. Initial Appeal

File (IAF), Tab 1 at 2, Tab 7 at 7, 12. The agency removed him effective

March 23, 2021, for failure to follow policy. IAF, Tab 7 at 12-15, 50-52.

The charge consisted of one specification concerning an incident in March 2020,

when the appellant did not complete a Uniform Offense Report or a Missing

Patient Reaction Worksheet after Police Services was notified of a high-risk

missing patient. Id. at 50. In sustaining the charge, the deciding official

determined that it “was supported by substantial evidence.” Id. at 12.

The appellant filed a Board appeal of his removal. IAF, Tab 1. After the

administrative judge held a hearing, IAF, Tab 20, the U.S. Court of Appeals for

the Federal Circuit (Federal Circuit) decided Rodriguez v. Department of

Veterans Affairs, 8 F.4th 1290, (Fed. Cir. 2021), and Connor v. Department of

Veterans Affairs, 8 F.4th 1319, (Fed. Cir. 2021). Recognizing that these cases

affected the adjudication of the appellant’s removal, the administrative judge

reopened the record and allowed the parties to submit argument on the impact of

Connor and Rodriguez on the appeal; however, he did not allow them to submit

additional evidence. IAF, Tab 22. After both parties responded,

the administrative judge issued an initial decision reversing the removal because

the deciding official reviewed the proposed removal under a substantial evidence

standard, instead of a preponderant evidence standard, when determining that the

appellant committed the charged offense. IAF, Tab 25, Initial Decision (ID)

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at 13, 15. The administrative judge declined to apply the harmful error standard

to the deciding official’s application of the incorrect standard of review.

ID at 14.

The agency has filed a petition for review arguing that the administrative

judge erred in reversing the action as not in accordance with law, instead of

taking evidence as to whether the deciding official actually applied a substantial

evidence standard and, if so, whether doing so was harmful. Petition for Review

(PFR) File, Tab 1. The appellant has responded. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

We remand the appeal for the administrative judge to provide the parties with

an opportunity to present evidence and argument regarding whether the agency’s

error in sustaining the removal based on substantial evidence harmed the

appellant.

As noted, the deciding official sustained the action based on his conclusion

that there was substantial evidence to do so. IAF, Tab 7 at 12. Before the initial

decision in this case was issued, the Federal Circuit decided Rodriguez, 8 F.4th

at 1296-1301, in which it determined that the agency erred by applying a

substantial evidence burden of proof to its internal review of a disciplinary action

issued under 38 U.S.C. § 714. The court found that substantial evidence is the

standard of review to be applied by the Board, not the agency, and that

an agency’s deciding official must “determine[]” whether “the performance or

misconduct . . . warrants” the action at issue, using a preponderance of the

evidence burden of proof. Id. at 1298-1301 (quoting 38 U.S.C. § 714(a)(1)).

The Federal Circuit’s decision in Rodriguez applies to all pending cases,

regardless of when the events at issue took place. Semenov v. Department of

Veterans Affairs, 2023 MSPB 16, ¶ 22. Applying the decision in Rodriguez, the

administrative judge reversed the agency’s removal as “not in accordance with

law” under 5 U.S.C. § 7701(c)(2)(C). ID at 14-15. He concluded that because

the agency’s action was unlawful, he was required to reverse it. Id. However,

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after the initial decision was issued, the Board issued its decision in Semenov,

2023 MSPB 16. In Semenov, the Board found it appropriate to apply the harmful

error standard from 5 U.S.C. § 7701(c)(2) to the agency’s improper application of

the substantial evidence standard to its review of the proposed removal.

Semenov, 2023 MSPB 16, ¶¶ 21-24. We are not persuaded by the finding in the

initial decision, or the appellant’s argument on review, that the agency’s error

requires the Board to reverse the action. ID at 14-15; PFR File, Tab 3 at 10-11.

On review, the agency argues that the administrative judge incorrectly

relied on McCollum v. National Credit Union Administration, 417 F.3d 1332

(Fed. Cir. 2005), when declining to apply the harmful error standard to the

deciding official’s substantial evidence review. PFR File, Tab 1 at 8-9.

The administrative judge relied on McCollum for the proposition that when

an appealable action is unlawful in its entirety, i.e., there is no legal authority for

the agency’s action, the Board will reverse such an action as “not in accordance

with law” under 5 U.S.C. § 7701(c)(2)(C), regardless of whether the error was

harmful. ID at 14. In McCollum, 417 F.3d at 1339-40, the Federal Circuit

reversed the de facto removal of an employee because it was not in accordance

with law. There, agency officials effectively removed the petitioner for failure to

accept a directed reassignment. Id. at 1335-38. However, the Federal Circuit

found that the only entity with authority to remove the petitioner was a 3-member

Board, which did not vote to remove him. Id. at 1338-40. Instead, other agency

officials processed what amounted to an involuntary separation from service.

Id. at 1338, 1340. Thus, because “the agency itself, according to its own

authority structure, never removed [the petitioner],” his removal was not in

accordance with law. Id. at 1340.

An action taken pursuant to 38 U.S.C. § 714 “may not be sustained under

[§ 7701(b)]” if the agency committed harmful error, based its decision on a

prohibited personnel practice under 5 U.S.C. 2302(b), or “the decision was not in

accordance with law.” Semenov, 2023 MSPB 16, ¶ 23 (quoting 5 U.S.C.

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§ 7701(c)(2)). The “harmful error” provision of 5 U.S.C. § 7701(c)(2) is

applicable to all procedural errors, while the “not in accordance with law”

provision is applicable to other unlawful actions. Doe v. Department of Justice,

121 M.S.P.R. 596, ¶ 12 (2014). Unlike in McCollum, here, the agency itself acted

to remove the appellant. However, it committed procedural error during the

process by applying the wrong burden of proof in sustaining the removal. This

error in the application of the procedures under 38 U.S.C. § 714 does not render

the action unlawful. See Rodriguez, 8 F4th at 1296, 1301 (identifying the

appellant’s argument regarding the agency’s application of the substantial

evidence standard under 38 U.S.C. § 714 as one of procedural error, and

remanding the issue for further proceedings); see also Bannister v. Department of

Veterans Affairs, 26 F.4th 1340, 1343-44 (Fed. Cir. 2022) (remanding to the

Board a 38 U.S.C. § 714 removal in which the agency improperly applied the

substantial evidence standard “for further proceedings under the correct legal

standard”). Thus, as we found in Semenov, the harmful error standard from

5 U.S.C. § 7701(c)(2) applies here. Semenov, 2023 MSPB 16, ¶ 23.

We therefore remand the appeal for further adjudication. On remand, the

administrative judge should afford the parties an opportunity to submit evidence

and argument, including holding a supplemental hearing if needed, on the issue of

whether the agency’s use of the substantial evidence standard constituted harmful

procedural error. Semenov, 2023 MSPB 16, ¶ 24.

On remand, the administrative judge should allow the parties an opportunity to

present evidence and argument regarding whether the agency considered the

Douglas factors in determining the penalty.

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the

Board provided a nonexhaustive list of factors relevant to penalty determinations.

In Semenov, 2023 MSPB 16, ¶¶ 44-50, the Board concluded that, consistent with

the Federal Circuit’s decision in Connor, 8 F.4th at 1325-26, in reviewing the

penalty in an action taken under 38 U.S.C. § 714, the agency and the Board must

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apply the Douglas factors. Even though the Board is precluded from mitigating

the penalty under 38 U.S.C. §§ 714(d)(2)(B), (d)(3)(C), the Board is required “to

review for substantial evidence the entirety of the [agency’s] removal decision—

including the penalty.” Semenov, 2023 MSPB 16, ¶ 45 (quoting Sayers v.

Department of Veterans Affairs, 954 F.3d 1370, 1379 (Fed. Cir. 2020)). That

review is essentially to ensure that the agency conscientiously considered the

relevant factors and struck a responsible balance of those factors within tolerable

limits of reasonableness. Id., ¶ 48.

Here, the administrative judge provided the parties with guidance regarding

the Board’s obligation to review the penalty in an action taken under the VA

Accountability Act, pursuant to Connor. IAF, Tab 22. However, he did not

allow the parties to submit additional evidence or testimony regarding whether

the deciding official considered the relevant mitigating and aggravating Douglas

factors. IAF, Tab 22 at 2. Further, because he reversed the agency’s action based

on its use of the wrong burden of proof, he did not reach the issue of the

reasonableness of the removal penalty. ID at 15 n.14. In the proposed removal

letter, the proposing official did not reference Douglas. However, he stated that

he considered the appellant’s prior admonishment and suspensions and his job

level and responsibility as Lead Police Officer, and concluded that he lacked

confidence in the appellant’s ability to perform at a satisfactory level or to be

rehabilitated. IAF, Tab 7 at 50. Similarly, in the deciding official’s decision

letter upholding the proposed removal, he also did not reference Douglas;

however, he did state that the penalty of removal was reasonable in light of the

appellant’s prior discipline for failure to follow supervisory instruction as well as

the higher standard to which he was held as Lead Police Officer. Id. at 12.

Additionally, in his hearing testimony, the deciding official stated that he

did not conduct a Douglas factor analysis; however, he determined that removal

was reasonable in light of the appellant’s prior discipline for the same

misconduct, the seriousness of the offense, his knowledge of the rules and

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policies violated, and his supervisory role as Lead Police Officer. Hearing

Transcript at 134-37, 167-69 (testimony of the deciding official).

Nevertheless, the record does not reflect whether the deciding official

considered any other relevant mitigating Douglas factors in making the decision

to remove the appellant, including, for example, the appellant’s 23-years of

service with the agency and the consistency of the penalty. IAF, Tab 7 at 43; see

Douglas, 5 M.S.P.R. at 305-06. On remand, the administrative judge should

permit the parties to submit additional evidence and argument on the penalty

issue. See Semenov, 2023 MSPB 16, ¶ 50. In reviewing the penalty, the

administrative judge should determine whether the agency proved by substantial

evidence that it properly applied the Douglas factors and whether the agency’s

penalty selection was reasonable, and, if not, he should remand the appellant’s

removal to the agency for a new decision on the appropriate penalty. Id. (citing,

among other cases, Connor, 8 F.4th at 1326-27).

The administrative judge may adopt his prior findings on the appellant’s

affirmative defenses, as clarified by this Remand Order.

The administrative judge found that the appellant failed to prove his

affirmative defenses of retaliation for equal employment opportunity (EEO)

activity and a prior non-whistleblower-reprisal Board appeal. ID at 15-21. On

review, neither party challenges the administrative judge’s findings that the

appellant did not prove his affirmative defenses. Id.

In making his findings regarding the appellant’s EEO affirmative defense,

the administrative judge observed that, pursuant to Savage v. Department of the

Army, 122 M.S.P.R. 612, ¶¶ 48, 51 (2015), overruled by Pridgen v. Office of

Management and Budget, 2022 MSPB 31, if the appellant shows that a

discriminatory or retaliatory motive was a factor in the contested action, the

Board will reverse the action unless the agency shows that it would have taken

the same action in the absence of its improper motive. ID at 15-16. After the

administrative judge issued his decision, the Board clarified the standards of

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proof applicable to EEO reprisal claims that arise, as does the appellant’s, under

the Age Discrimination in Employment Act and Title VII. IAF, Tab 7 at 8-9,

Tab 13 at 13. As relevant here, the appellant may prove a claim of retaliation by

showing that his prior EEO activity was at least a motivating factor in his

removal. Pridgen, 2022 MSPB 31, ¶ 20-22, 30. The administrative judge found

that the appellant failed to prove that EEO retaliation was a motivating factor in

his removal. ID at 20. Because he did not show that retaliation was a motivating

factor in his removal, he necessarily failed to meet the more stringent “but-for”

standard. See Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 33. Therefore,

we find that the administrative judge’s application of the burden of proof set forth

in Savage did not impact his determination. See Panter v. Department of the Air

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

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

initial decision).

An additional matter requires correction. In the initial decision, the

administrative judge provides conflicting findings regarding whether the

appellant raised a claim of retaliation under the “cat’s paw” theory, which we

clarify here. The administrative judge acknowledged that the crux of the

appellant’s reprisal argument is that the proposing official, who he alleges

harbored retaliatory motive against him because he was a responsible

management official in the appellant’s EEO complaint, maintained a “close

personal friendship” with the deciding official, which rendered the deciding

official incapable of making an unbiased decision concerning the appellant’s

removal. IAF, Tab 7 at 20, Tab 12 at 7; ID at 19. The administrative judge

essentially found that the appellant did not prove retaliation under the “cat’s paw”

theory. ID at 19-20. However, he concluded that the appellant did not allege a

claim of retaliation under the “cat’s paw theory.” ID at 20 n.18. We disagree and

find that the appellant here did appear to allege a claim of retaliation under the

“cat’s paw” theory. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 11

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(2012) (explaining the Supreme Court has adopted the term “cat’s paw” to

describe a case in which a particular management official, acting because of an

improper animus, influences an agency official who is unaware of the improper

animus when implementing a personnel action (citation omitted)). Nevertheless,

because we discern no error with the administrative judge’s analysis or finding

that the appellant failed to prove that the proposing official improperly influenced

the deciding official, we find that any such error in identifying the claim is

harmless. See Panter, 22 M.S.P.R. at 282 (finding that an adjudicatory error that

is not prejudicial to a party’s substantive rights provides no basis for reversal of

an initial decision).

Lastly, in finding that the appellant failed to prove retaliation for his prior

Board appeal of a 3-day suspension, the administrative judge observed that,

pursuant to Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir.

1986), an appellant can establish an affirmative defense of non-whistleblower

reprisal by proving by a preponderance of the evidence that he engaged in

protected activity, the accused official knew of the protected activity, the adverse

employment action under review could, under the circumstances, have been

retaliation, and there was a genuine nexus between the retaliation and the adverse

action. ID at 20-21. We clarify that in Mattison v. Department of Veterans

Affairs, 123 M.S.P.R. 492, ¶ 8 (2016), the Board observed that this standard also

does not apply when the prior protected activity involves an allegation of reprisal

for EEO activity. Here, the administrative judge did not make a finding as to

whether the appellant’s prior appeal over his 3-day suspension alleged retaliation

for EEO activity; however, upon reviewing the record of that appeal, we find that

it did not. Brown v. Department of Veterans Affairs, MSPB Docket No.

DA-0752-19-0402-I-1, Initial Appeal File, Tab 1, Tab 6 at 9. On remand, the

administrative judge may adopt his prior findings as to the appellant’s affirmative

defenses, as clarified by this Order.

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ORDER

For the reasons discussed above, we remand this case to the Dallas

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.