Opinion

David Tran v. Department of Defense

Court: Merit Systems Protection Board
Filed: May 3, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID TRAN, DOCKET NUMBER

Appellant, DC-0752-19-0758-I-1

DEPARTMENT OF DEFENSE, DATE: May 3, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant.

Maxwell Selz , Esquire, and Jonathan Beyer , Esquire, APO, AE, 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 demotion. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 to

supplement the administrative judge’s findings concerning the appellant’s

whistleblower reprisal affirmative defense, we AFFIRM the initial decision.

BACKGROUND

The essential undisputed facts as set forth in the initial decision are as

follows. The appellant was employed by the Department of Defense Education

Activity (DoDEA) as Principal of the Ankara Elementary/High School in Ankara,

Turkey. Initial Appeal File (IAF), Tab 16, Initial Decision (ID) at 1-2. On

June 30, 2019, the agency proposed the appellant’s demotion based on two

charges of conduct unbecoming a Federal supervisor (five specifications) and lack

of candor (two specifications). ID at 2. The conduct unbecoming charge was

based on the appellant’s failure to ensure the proper use of a Government vehicle,

failure to provide accurate information to a military unit concerning persons

authorized to access the school, and allowing an individual with no official

DoDEA affiliation to access the school to perform, among other things, personal

services for school employees. ID at 2-30. The lack of candor charge was based

on the appellant’s inconsistent statements concerning his knowledge of the

services performed by the individual whom he improperly allowed to access the

school and his statement concerning communications about such individual’s

improper use of the Government vehicle. ID at 30-38. After affording the

appellant an opportunity to respond, the deciding official sustained the charges

and the appellant was demoted, effective August 17, 2019. ID at 1-2. The record

reflects that the appellant was demoted from his Principal position to a position as

a Teacher (General Science). IAF, Tab 5 at 4.

The appellant filed a Board appeal, challenging his demotion and raising

affirmative defenses of whistleblower reprisal and discrimination based on his

race. IAF, Tab 1. After the appellant withdrew his request for a hearing, IAF,

Tab 11, the administrative judge issued an initial decision based on the written

record, ID at 1. The administrative judge sustained both charges, finding that the

agency proved all of its specifications by preponderant evidence. ID at 2-38.

The administrative judge further found that the appellant failed to prove his

affirmative defenses of race discrimination and whistleblower reprisal. 2 ID

at 38-47. Finally, the administrative judge found that the penalty of demotion

was reasonable. ID at 47-52.

The appellant has filed a petition for review, which the agency has

opposed. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly found that the agency proved its charges.

In his petition for review, the appellant reiterates the arguments that he

raised in his close of record submission below without citation to any evidence

and without identifying any errors in the administrative judge’s analysis

Regarding the appellant’s claim of race discrimination, the administrative judge found

that the appellant failed to prove that the agency’s action was “based on illegal

discrimination due to his race.” ID at 42. The appellant does not challenge such a

finding on review; however, in light of the administrative judge’s citation to and

analysis under the standards set forth in Savage v. Department of the Army,

122 M.S.P.R. 612, ¶ 51 (2015), clarified by Gardner v. Department of Veterans Affairs ,

123 M.S.P.R. 647, ¶¶ 30-31 (2016), ID at 38-42, we construe such a finding as

tantamount to finding that the appellant failed to prove that his race was a motivating

factor in the agency’s decision to demote him. Because we discern no error with the

administrative judge’s motivating factor analysis or conclusion regarding this claim, we

do not reach the question of whether retaliation was a “but-for” cause of the removal

action. See Johnson v. Department of Veterans Affairs, 2023 MSPB 9, ¶ 5 n.2.

concerning the agency’s proof of its charges. Compare IAF, Tab 15 at 50-51, 53,

with PFR File, Tab 1 at 16-18. Thus, the Board will not embark upon a complete

review of the record. See Baney v. Department of Justice, 109 M.S.P.R. 242, ¶ 7

(2008); Tines v. Department of the Air Force , 56 M.S.P.R. 90, 92 (1992);

5 C.F.R. § 1201.115(a)(2).

Regarding the conduct unbecoming charge, the appellant’s argument that

he was not responsible for keeping track of the Government vehicle’s mileage or

usage constitutes disagreement with the administrative judge’s findings and does

not provide a basis for reversal. PFR File, Tab 1 at 16. In particular, the

administrative judge considered the record evidence and specifically rejected the

appellant’s argument, instead finding that the appellant, as principal and the

senior administrative authority at the school, was vested with the responsibility to

grant or deny use of the vehicle. 3 ID at 8, 14-16. Regarding the lack of candor

On March 31, 2021, the appellant filed a motion for leave to file a supplemental

petition for review in which he seeks to submit new information in the form of an

affidavit from a teacher attesting to the fact that he advised her that a certain

unauthorized individual was not permitted to drive the school van on September 25,

2018. PFR File, Tab 6. The appellant contends that this information is relevant to

specification one of the agency’s conduct unbecoming charge in which the

administrative judge found that the agency proved that the appellant improperly failed

to prevent the unauthorized individual from using the school van, despite having been

on clear notice that the individual was not an authorized driver. PFR File, Tab 6 at 4;

ID at 2-9. We deny the appellant’s motion because, although the affidavit itself may

have been unavailable prior to the close of the record, the appellant has not shown that

the information contained in the affidavit is new. See Grassell v. Department of

Transportation, 40 M.S.P.R. 554, 564 (1989) (explaining that, to constitute new

evidence, the information contained in the documents, not just the documents

themselves, must have been unavailable despite due diligence when the record closed);

5 C.F.R. § 1201.115(d). Moreover, the appellant has failed to show that the information

in the affidavit is material because he has not shown how this evidence provides a basis

for reversing the initial decision in which the administrative judge found that the

penalty of demotion was reasonable based on the agency’s proof of all five of its

specifications in support of its conduct unbecoming charge as well as both

specifications in support of its lack of candor charge. See Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980) (concluding that the Board generally will

not grant a petition for review based on new evidence absent a showing that it is of

sufficient weight to warrant an outcome different from that of the initial decision); see

also Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (finding

charge, to the extent the appellant argues that his statements on March 13 and 16,

2019, were not inconsistent, PFR File, Tab 1 at 17, such an argument amounts to

mere disagreement with the administrative judge’s finding that the appellant’s

statement that he did not know what services were rendered by a non-DoDEA

individual was false because 3 days later he provided a detailed list of services

provided by such individual, ID at 31-34; see, e.g., 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); Broughton v. Department of Health

& Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

The administrative judge properly found that the appellant failed to prove that he

made a protected disclosure.

The appellant contends that he made a protected disclosure when he

reported an incident in which he believed that a teacher had abused the agency’s

sick leave policy by traveling to Cyprus when she was purportedly at home

resting per her doctor’s note. IAF, Tab 15 at 55; PFR File, Tab 1 at 18. The

appellant’s belief appears to have been based on the employee updating her cover

photo on Facebook and indicating that the photo was of Cyprus. IAF, Tab 15

at 110. The record reflects that, on October 30, 2018, the appellant emailed

another employee and carbon copied his supervisor concerning the situation and

asked, “How should I handle this one?” Id. at 108. The employee responded by

stating, “As far as the facebook post, it could be a photo from a different time and

if not, while it feels bad--where she recovers from surgery is not really our issue.”

Id. at 107.

The administrative judge found that the appellant failed to prove that this

email amounted to a protected disclosure because it failed to present any clue that

it was identifying serious agency misconduct. ID at 46. The Board has held that

that, when more than one event or factual specification is set out to support a single

charge, proof of one or more of the supporting specifications is sufficient to sustain the

charge).

reporting time and attendance abuse can amount to a protected disclosure. See,

e.g., Grubb v. Department of the Interior, 96 M.S.P.R. 361, ¶ 12 (2004) (finding

that the appellant’s specific allegations concerning time and attendance abuse that

were based on her personal observations and supported by documentation

amounted to a disclosure of a violation of law, rule, or regulation). Here,

however, we find that a disinterested observer would not have concluded based on

the updating of a Facebook cover photo, without further action or investigation,

that this employee was engaging in time and attendance abuse. See, e.g.,

Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 11 (2016) (stating that

a reasonable belief exists if a disinterested observer with knowledge of the

essential facts known to and readily ascertainable by the appellant could

reasonably conclude that the actions of the Government evidence one the

categories of wrongdoing listed in section 2302(b)(8)(A)). Absent any other

explanation or argument concerning the reasonableness of the appellant’s belief,

we find that the appellant has failed to prove by preponderant evidence that he

reasonably believed that he was disclosing one of the categories of wrongdoing

set forth in 5 U.S.C. § 2302(b)(8)(A).

Although the administrative judge found that the appellant failed to prove

that he raised nonfrivolous allegations that he made a protected disclosure, ID

at 47, the appellant bears the burden of proving his affirmative defense of

whistleblower reprisal by preponderant evidence, see, e.g., Shibuya v. Department

of Agriculture, 119 M.S.P.R. 537, ¶ 19 (2013) (explaining that once the agency

proves its adverse action case by preponderant evidence, the appellant must show

by preponderant evidence that he made a protected disclosure that was a

contributing factor in the agency’s personnel action). Thus, we modify the initial

decision to find that the appellant failed to meet his burden of proof under the

preponderant evidence standard.

The appellant appears to assert that he made additional protected

disclosures regarding that same teacher publishing a podcast containing offensive

comments about individuals at the school. IAF, Tab 15 at 54-56; PFR File, Tab 1

at 18-19. Such claims, however, were not included as part of the accepted issues

in the Order and Summary of Close of Record Conference, which solely

identified his October 30, 2018 email as his alleged protected disclosure, and the

administrative judge did not analyze or mention them in the initial decision. IAF,

Tab 13 at 5, Tab 16. The Board considers a nonexhaustive list of factors in

determining whether an appellant is deemed to have waived or abandoned a

previously identified affirmative defense. Thurman v. U.S. Postal Service,

2022 MSPB 21, ¶¶ 17-18. The relevant factors include the following: (1) the

thoroughness and clarity with which the appellant raised his affirmative defense;

(2) the degree to which the appellant continued to pursue his affirmative defense

in the proceedings below after initially raising it; (3) whether the appellant

objected to a summary of the issues to be decided that failed to include the

potential affirmative defense when he was specifically afforded an opportunity to

object and the consequences of his failure were made clear; (4) whether the

appellant raised his affirmative defense or the administrative judge’s processing

of the affirmative defense claim in his petition for review; (5) whether the

appellant was represented during the course of his appeal before the

administrative judge and on petition for review, and if he was not, the level of

knowledge of Board proceedings possessed by the appellant; and (6) the

likelihood that the presumptive abandonment of the affirmative defense was the

product of confusion, or misleading or incorrect information provided by the

agency or the Board. Id., ¶ 18. The list is not exhaustive, and none of the

individual factors identified will be dispositive. Id. Instead, the applicability and

weight of each factor should be determined on a case-by-case basis. Id.

In this case, nearly every one of the factors points to the conclusion that the

appellant abandoned his affirmative defense. Regarding the first and second

factors, we find that the appellant was not thorough, clear, or consistent in raising

this protected disclosure. The appellant’s initial appeal only clearly referenced

his protected disclosure on October 30, 2018, concerning the teacher’s alleged

sick leave abuse. 4 IAF, Tab 1 at 41. When discussing the contributing factor

element, the appellant asserted that his supervisor was aware of an investigation

the appellant started into a parent complaint about a teacher’s podcast, but he did

not clearly explain any alleged disclosure he made related to the teacher’s

podcast. Id. at 42. In his close of record submission filed on the date the record

closed, the appellant referenced for the first time, without clear explanation or

citation to any record evidence, additional alleged protected disclosures he made

on five separate dates concerning alleged offensive remarks the teacher made in

her podcast. IAF, Tab 15 at 54-56. Moreover, the agency believed the sole

protected disclosure at issue in the appeal was the appellant’s October 30, 2018

email and did not address any other disclosures. IAF, Tab 4 at 12, Tab 14

at 23-25. Regarding the third factor, the appellant did not object to the

administrative judge’s summary of the issues in the close of record order, which

stated that the appellant’s identified protected disclosure was an email he sent on

October 30, 2018. IAF, Tab 13 at 5. The order specifically notified the appellant

that additional issues not identified in the summary would be precluded and

afforded him an opportunity to object. Id. at 1, 6. Regarding the fourth factor,

the appellant has reiterated his claim on review, PFR File, Tab 1 at 18-19, so we

will consider that as a challenge to the administrative judge’s failure to adjudicate

the claim. Regarding the fifth factor, the appellant has been represented by an

attorney during his proceedings before the Board. Finally, regarding the sixth

factor, there is nothing in the record to indicate that the appellant’s presumptive

abandonment of this alleged protected disclosure was the product of confusing,

misleading, or incorrect information provided by the agency or the Board. Under

To the extent the appellant refers to an October 30, 2018 email disclosure to his

supervisor regarding the teacher’s podcast, IAF, Tab 15 at 17, 55; PFR File, Tab 1

at 18, he has not cited to any evidence in the record and we are unable to locate such an

email. Rather, the record appears to reflect that this alleged disclosure occurred on

December 12, 2018. IAF, Tab 15 at 55, 116.

these circumstances, we deem the appellant to have abandoned his claim of

reprisal based on his alleged disclosure concerning offensive remarks made by a

teacher in her podcast.

The administrative judge properly found that the penalty of demotion was

reasonable.

When, as here, all of the agency’s charges are sustained, the Board will

review the agency-imposed penalty only to determine if the agency considered all

of the relevant factors and exercised management discretion within the tolerable

limits of reasonableness. Pinegar v. Federal Election Commission, 105 M.S.P.R.

677, ¶ 53 (2007); see Douglas v. Veterans Administration, 5 M.S.P.R. 280,

305-06 (1981) (articulating a nonexhaustive list of 12 factors that are relevant in

assessing the appropriate penalty for an act of misconduct). In making this

determination, the Board must give due deference to the agency’s primary

discretion in maintaining employee discipline and efficiency, recognizing that the

Board’s function is not to displace management’s responsibility but to ensure that

managerial judgment has been properly exercised. Pinegar, 105 M.S.P.R. 677,

¶ 53. The Board will modify or mitigate an agency-imposed penalty only when it

finds that the agency failed to weigh the relevant factors or that the penalty

clearly exceeds the bounds of reasonableness. Id.

On review, the appellant disagrees with the administrative judge’s findings

that the deciding official appropriately weighed the Douglas factors and the

agency’s penalty was therefore entitled to deference. PFR File, Tab 1 at 25-28.

In particular, he asserts that his lack of prior discipline, positive work record, and

potential for rehabilitation outweigh the nature and seriousness of the offense. Id.

at 26-28. However, we agree with the administrative judge that the record

reflects that the deciding official considered the appellant’s lack of prior

discipline as well as his 18 years of service and positive work performance but

found that the nature and seriousness of the offenses and the appellant’s status as

a principal and supervisor at a remote location overseas outweighed such factors.

ID at 48-52. The deciding official further considered the appellant’s potential for

rehabilitation but found that he did not show any such potential because he failed

to acknowledge responsibility for his actions or demonstrate remorse in his reply.

ID at 51. Thus, although the appellant may disagree with the demotion penalty,

we discern no error in the administrative judge’s determination that demotion was

within the tolerable limits of reasonableness and the agency’s selected penalty of

demotion to a nonsupervisory position was entitled to deference. See Crosby,

74 M.S.P.R. at 106; Broughton, 33 M.S.P.R. at 359; see also Martin v.

Department of Transportation, 103 M.S.P.R. 153, ¶ 13 (2006) (noting that

agencies are entitled to hold supervisors to a higher standard of conduct than

nonsupervisors because they occupy positions of trust and responsibility), aff’d,

224 F. App’x 974 (Fed. Cir. 2007).

NOTICE OF APPEAL RIGHTS 5

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.

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.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

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

should contact that forum for more information.

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

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

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

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. 6 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).

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.

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