Opinion

Haneefah Mahmood v. Social Security Administration

Court: Merit Systems Protection Board
Filed: May 7, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.0%

observing that the Board generally must give deference to an administrative judge’s credibility determinations when they 10 are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing

How later courts described this case

observing that the Board generally must give deference to an administrative judge’s credibility determinations when they 10 are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing
stating that the Board may overturn demeanor-based credibility determinations only when it has “sufficiently sound” reasons to do so

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HANEEFAH R. MAHMOOD, DOCKET NUMBER

Appellant, SF-0752-17-0677-I-2

SOCIAL SECURITY DATE: May 7, 2024

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrew Kim , Esquire, Atlanta, Georgia, for the appellant.

Joshua Fizer and Matthew C. Miller , Baltimore, Maryland, 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 her removal. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

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

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

make clear that, consistent with the Board’s decision in Boo v. Department of

Homeland Security, 122 M.S.P.R. 100 (2014), the agency provided evidence

demonstrating that the appellant made the statements identified in both

specifications of the false statement charge for her own private material gain, and

to clarify the administrative judge’s findings concerning the appellant’s

affirmative defense of reprisal for equal employment opportunity (EEO) activity,

we AFFIRM the initial decision.

BACKGROUND

The appellant was previously employed as a Senior Case Technician with

the agency’s Disability Adjudication and Review office in Seattle, Washington.

Mahmood v. Social Security Administration, MSPB Docket No. SF-0752-17-

0677-I-1, Initial Appeal File (IAF), Tab 15 at 34. By a letter dated May 2, 2017,

the agency proposed to remove the appellant based on four charges: (1) failure to

cooperate with an administrative investigation, with a single specification;

(2) conduct unbecoming a Federal employee, with four specifications; (3) lack of

candor, with two specifications; and (4) false statements, with two specifications.

Id. at 94-113. The charges arose out of the appellant’s interactions with her

supervisor on three separate occasions: on January 19, 2017, during the agency’s

effort to investigate another employee’s failure to receive two original emails; on

March 14, 2017, during the agency’s investigation into allegations that the

appellant had harassed another employee; and during a conversation and

subsequent emails on March 29, 2017, regarding whether the appellant was

completing one of her assigned duties. Id. at 94-100. The appellant provided

written and oral replies to the proposed removal. Id. at 60-90. After considering

the appellant’s responses, the deciding official issued a decision sustaining all of

the charges and specifications and removing the appellant, effective August 4,

2017. Id. at 35-49.

The appellant timely filed an appeal with the Board challenging her

removal. IAF, Tab 1. The appellant also raised a number of affirmative defenses,

including a violation of her Weingarten rights, 2 retaliation for her EEO activity, a

due process violation based on ex parte communications between several agency

officials involved in her removal, and a violation of the applicable collective

bargaining agreement. Id. at 2-12; Mahmood v. Social Security Administration,

MSPB Docket No. SF-0752-17-0677-I-2, Refiled Appeal File (RAF), Tab 15 at 2.

The appeal was dismissed without prejudice to refiling at the parties’ request, and

was subsequently automatically refiled. IAF, Tab 30; RAF, Tab 1; see RAF,

Tab 6. Following the first day of the appellant’s requested hearing in the refiled

appeal, the parties informed the administrative judge that they had reached a

tentative resolution of the appeal, and consequently, the administrative judge

postponed the remaining scheduled hearing days. RAF, Tabs 29-30, 35. After

the parties were unable to reach a final agreement to settle the appeal, see RAF,

Tab 31 at 1, the appellant withdrew her request for a hearing and requested a

decision on the written record, RAF, Tabs 39, 40.

Weingarten rights involve a private sector employee’s right, articulated in National

Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251, 260 (1975), to request

union representation at an investigatory interview that the employee reasonably believes

might result in disciplinary action. See Howard v. Office of Personnel Management,

31 M.S.P.R. 617, 621 (1986), aff’d, 837 F.2d 1098 (Fed. Cir. 1987) (Table). Congress

granted Federal employees Weingarten-type rights in the Civil Service Reform Act.

5 U.S.C. § 7114(a)(2)(B).

After the parties submitted their close of record briefs, RAF, Tabs 41-43,

the administrative judge issued an initial decision affirming the agency’s removal

action, RAF, Tab 44, Initial Decision (ID). The administrative judge found that

the agency proved all four charges and all of the attendant specifications. ID

at 8-25. She also found that the appellant failed to prove any of her affirmative

defenses. ID at 25-32. Finally, the administrative judge found that the agency

established a nexus between the misconduct and the efficiency of the service, and

determined that the removal penalty was reasonable under the circumstances. ID

at 32-35.

The appellant has timely filed a petition for review. Petition for Review

(PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant challenges the administrative judge’s finding that

the agency proved the charge of failure to cooperate with an agency investigation,

arguing that her conduct did not rise to the level of a refusal to cooperate. PFR

File, Tab 1 at 9-12. The appellant also argues that the administrative judge

erroneously credited her supervisor’s version of events related to the conduct

unbecoming and lack of candor charges, even where it was in conflict with the

documentary evidence or was insufficiently specific. Id. at 12-16. Finally, the

appellant argues that the administrative judge applied the incorrect legal standard

for the false statement charge by considering whether the appellant made the

purportedly false statements with the intent to deceive, but without considering

whether she made the statements for “private material gain,” as required by the

Board in Boo v. Department of Homeland Security. Id. at 16-17. The appellant

has not challenged any of the administrative judge’s findings denying her

affirmative defenses.

The administrative judge correctly concluded that the agency proved the charge

of failure to cooperate with an administrative investigation.

Regarding the charge of failure to cooperate with an administrative

investigation, the appellant does not dispute the administrative judge’s finding

that she exited the interview room before she was asked or answered any

substantive questions for the agency’s investigation. See ID at 9-10. Instead, the

appellant reiterates her argument that she was reluctant to answer questions due

to the fact that she did not have a union representative present with her in-person,

and she faults the agency for failing to contact the union to see whether a

representative was available in-person on the day of her interview. PFR File,

Tab 1 at 9-11. The appellant also notes that she did not actually refuse to answer

any question and blames the agency for failing to attempt to reschedule the

meeting so that a union representative could be present in-person. Id. at 11-12.

She argues that her conduct did not constitute a failure to cooperate with the

investigation, and the administrative judge erred by concluding that the agency

proved the charge as written. Id. As support for her argument, the appellant cites

a number of Board and U.S. Court of Appeals for the Federal Circuit (Federal

Circuit) cases that she argues demonstrate that her actions did not rise to the level

of an actual refusal to cooperate with the investigation. See id. at 9-12 (citing

Modrowski v. Department of Veterans Affairs, 252 F.3d 1344, 1350 (Fed. Cir.

2001); Pedeleose v. Department of Defense, 110 M.S.P.R. 508 (2009); Negron v.

Department of Justice, 95 M.S.P.R. 561 (2004); Hankins v. Department of the

Army, MSPB Docket No. DA-0752-13-0423-I-1, Final Order (Sept. 8, 2014)).

The events discussed in this charge occurred on January 19, 2017, when the

appellant was summoned to an interview room to discuss the facts and

circumstances surrounding another employee’s failure to receive two original

emails. IAF, Tab 18 at 19; see ID at 9. Before the appellant’s supervisor could

begin questioning the appellant, she expressed her belief that the investigation

concerned her pending EEO complaint and stated that she wanted her

representative present. IAF, Tab 18 at 19. After informing the appellant that she

could not have an EEO representative, the appellant left the room. Id. She

returned approximately 4 minutes later and again demanded her choice of a

representative. Id. at 20. Her supervisor informed the appellant that she could

have a union representative assist her, at which point the appellant requested a

break for a few minutes to decide what to do and again left the room. Id.

at 20-21. After returning, the appellant restated her belief that she had the right

to have “any rep” assist her, but stated that she wanted a union representative,

and that she wanted to have the representative appear in-person. 3 Id. at 21. The

appellant’s supervisor informed the appellant that she could not direct the manner

of how her union representative appeared and informed her that the representative

could appear by telephone. The appellant said “bye” and subsequently left the

room, never to return, without answering any substantive questions for the

interview. Id.

Concerning the appellant’s claims that she was entitled to have an

in-person union representative and that she rightfully refused to continue the

interview until an in-person representative was available, as the agency correctly

notes, the administrative judge considered and rejected this argument. PFR File,

Tab 3 at 11-12; see ID at 10-11; RAF, Tab 20 at 115. The administrative judge

specifically found that the applicable collective bargaining agreement did not

require the agency to allow an in-person union representative, and so the

appellant could not condition her cooperation with the agency investigation on a

representative’s physical presence at the interview. ID at 10-11, 30-31. We have

reviewed the applicable language in the collective bargaining agreement and

discern no reason to disturb the administrative judge’s finding. RAF, Tab 20

at 115; 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

As the union representative noted, the appellant’s office was located in Seattle,

Washington, and the union representatives were located at a different office, a

significant distance away, in Spokane, Washington. See IAF, Tab 42 at 198, 205.

evidence as a whole, drew appropriate inferences, and made reasoned conclusions

on issues of credibility); Broughton v. Department of Health and Human Services,

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

Further, as the administrative judge noted, the union representative who

was on call the day of the appellant’s interview indicated in deposition testimony

that she did not believe that the collective bargaining agreement required her

physical presence for a Weingarten meeting, and noted that because she was not

located in the same city as the appellant, she would not have even been able to be

physically present for the meeting and did not typically attend Weingarten

meetings in-person. ID at 10-11; see Tab 42 at 198, 205-08, 225-26.

Consequently, the appellant’s argument that the agency was obligated to

reschedule the interview to accommodate a union representative’s physical

presence is also without merit. PFR File, Tab 1 at 10-12.

Further, to the extent the appellant is arguing that her actions are

distinguishable from those in the Board and Federal Circuit cases she cites on

review, because she never actually “refused” to answer any questions, her

argument is inapposite. PFR File, Tab 1 at 9-12. As the administrative judge

noted, after the agency denied the appellant’s request for an in-person union

representative, the appellant made clear her intention not to participate in the

interview when she said “bye” to the interviewer before answering a single

substantive question, left the interview room for a final time, and made no further

attempt to contact the interviewer to continue the interview. ID at 9-11. In all of

the cases cited by the appellant on review other than Modrowski, the Board

ultimately upheld the charge of failure to cooperate with an investigation based

on conduct substantially similar to the appellant’s conduct in this case. See

Pedeleose, 110 M.S.P.R. 508, ¶¶ 3, 18-20 (upholding the charge of failure to

cooperate where the appellant refused to answer any questions on grounds that

the investigation was unlawful); Negron, 95 M.S.P.R. 561, ¶¶ 10-11, 31

(upholding the charge of failure to cooperate with an investigation based on the

appellant’s refusal to provide relevant documents in his possession in response to

an inquiry); Hankins, MSPB Docket No. DA-0752-13-0423-I-1, Final Order,

¶¶ 13, 15 (upholding a charge of failure to cooperate in an investigation where the

appellant did not “outright refuse[]” to answer any particular question, but

nevertheless was “evasive, refused to answer questions directly, and failed to

provide candid and complete answers”). 4

Finally, although the Federal Circuit reversed the charge of failure to

cooperate with an investigation in Modrowski, it did so because the information

the agency provided to the appellant in that case created considerable ambiguity

about the scope of the appellant’s immunity from criminal prosecution, and the

appellant did not have an opportunity to meet with his attorney to discuss the

scope of his immunity before he refused to answer the questions—an issue that is

not pertinent to the instant appeal. See Modrowski, 252 F.3d at 1350-53.

Accordingly, we find no error in the administrative judge’s determination that the

agency met its burden of proving the charge of failure to cooperate with an

agency investigation.

The administrative judge correctly concluded that the agency proved all

specifications of the conduct unbecoming a Federal employee and lack of candor

charges.

The appellant also challenges the administrative judge’s findings that the

agency proved the conduct unbecoming a Federal employee and lack of candor

charges. PFR File, Tab 1 at 12-16. Regarding the conduct unbecoming charge,

the appellant attacks the administrative judge’s credibility findings, arguing that

she failed to address the discrepancy between the October 27, 2017 deposition

testimony of the appellant’s supervisor, in which the supervisor responded that it

was not his “recollection” that the appellant said anything about requesting a

representative prior to leaving the interview room for the first time during their

We are not citing to this nonprecedential decision as precedent in support of our

decision, but rather in order to respond to the appellant’s argument relying on this

decision. See 5 C.F.R. § 1201.117(c)(2).

January 19, 2017 interview, and the contemporaneously prepared notes from

another supervisor who was acting as a note-taker for the interview, reflecting

that the appellant did request a union representative before leaving the interview

for the first time. PFR File, Tab 1 at 12-13; see IAF, Tab 18 at 15; RAF Tab 42

at 100. The appellant argues that this discrepancy, and the administrative judge’s

failure to address it, calls into question the administrative judge’s reliance on the

note-taker’s notes for other purposes—namely, her reliance on the notes to

establish that the appellant did not request a break before exiting the interview for

the first time at 10:01 a.m. on January 19, 2017, which was relevant to the first

specification of the conduct unbecoming charge. PFR File, Tab 1 at 12-13; see

ID at 12-13.

We agree with the agency that the appellant’s reliance on this purported

discrepancy is misplaced. PFR File, Tab 3 at 16-17. As an initial matter, the

appellant’s supervisor merely stated, during a deposition that occurred 9 months

after the incident in question, that it was not his “recollection” that the appellant

requested her representative before leaving the meeting for the first time. See

RAF, Tab 42 at 100. This apparent memory lapse had no bearing on the

challenged specification, which concerned whether the appellant requested a

break. Further, the administrative judge considered the appellant’s claim that she

requested a break at 10:01 a.m., but declined to credit it. ID at 12-13; see IAF,

Tab 18 at 21. In making this determination, the administrative judge credited the

note-taker’s contemporaneous notes and the appellant’s supervisor’s hearing

testimony, both of which identified the appellant’s latter request for a break at

approximately 10:13 a.m., and reasoned that if a prior request for a break at

10:01 a.m. had occurred, the testimony or the notes would have reflected the

request. ID at 13. Given the administrative judge’s demeanor-based finding, we

defer to her credibility determination. 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).

With respect to the lack of candor specifications concerning the events on

January 19, 2017, the relevant specifications charge the appellant with

inaccurately annotating the meeting transcript to reflect that she asked for, and

was granted, a break before leaving the interview room for the first time. IAF,

Tab 15 at 95. As with the conduct unbecoming specifications, for each of these

specifications, the administrative judge credited the supervisor’s version of

events, noting that he had credibly and consistently testified at the hearing about

these issues, and that his recollection of events was corroborated by the

note-taker’s notes. ID at 12-13. By contrast, the administrative judge declined to

credit the appellant’s claim that she requested and was granted a break,

concluding that she had provided inconsistent and evolving explanations for why

she left the room, stating at various times that she did so because she “had a panic

attack” after being denied access to her union representative, or that she was

unable to talk and was “gasping for air” when she left the room. Id.; see RAF,

Tab 41 at 66-67. It is possible that “gasping for air” could be considered a

symptom of a “panic attack,” so it is at least arguable that the appellant’s varied

explanations for why she left the room were not necessarily inconsistent.

Nevertheless, we have reviewed the record as a whole, including the supervisor’s

testimony and the note-taker’s notes, and we see no reason to disturb the

administrative judge’s finding in this regard. See Haebe v. Department of Justice,

288 F.3d at 1301.

Accordingly, with regard to the specifications of the charges of conduct

unbecoming a Federal employee and lack of candor related to the events of

January 19, 2017, we decline to disturb the administrative judge’s decision to

credit the appellant’s supervisor’s testimony and the note-taker’s

contemporaneous notes over the appellant’s version of the incident. See ID

at 12-13; IAF, Tab 15 at 94-95. The appellant’s attempts on review to have the

Board reweigh this evidence are unpersuasive. PFR File, Tab 3 at 5-7; see

Crosby, 74 M.S.P.R. at 105-06 (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,

33 M.S.P.R. at 359 (same).

Regarding the specification of the conduct unbecoming charge related to

the March 29, 2017 interaction between the appellant and her supervisor, the

appellant argues on review that the administrative judge failed to consider the

lack of specificity in the supervisor’s email to the appellant outlining the

appellant’s unprofessional conduct during their in-person conversation. PFR File,

Tab 1 at 14-15; see IAF, Tab 18 at 6-7. The relevant specification alleged that,

on the morning of March 29, 2017, after the appellant’s supervisor realized that

no one was covering the phones, he approached the appellant at her workstation

and asked her whether she was aware that she was scheduled to cover the phones,

and in response, the appellant made a number of disrespectful or inappropriate

statements, which were summarized in the proposed removal. IAF, Tab 15

at 94-95, 99. In a subsequent email later that day, the appellant’s supervisor

informed the appellant that her conduct that morning was unacceptable and

directed her to follow the standards of conduct expected of Federal employees.

Id. at 99; see IAF, Tab 18 at 6.

On review, the appellant argues that her supervisor’s email did not contain

the same level of detail as was contained in the notice of proposed removal, so

the administrative judge erred by crediting the supervisor’s recollection of what

the appellant said over the appellant’s assertion that she did not make the alleged

statements. PFR File, Tab 1 at 14-15. The appellant also appears to argue that

the administrative judge did not assign sufficient weight to the fact that there was

a more than 5-hour delay between when the March 29, 2017 interaction occurred

and when the appellant’s supervisor emailed the appellant to inform her that the

interaction was unacceptable and unprofessional. Id. at 15.

As the agency correctly notes, the administrative judge did acknowledge

the 5-hour gap between the interaction and the supervisor’s email, and credited

the supervisor’s explanation that he spent that period of time consulting with the

agency’s human resources and legal offices on how to appropriately address the

issue with the appellant. PFR File, Tab 3 at 19; see ID at 15-16. Regarding the

appellant’s suggestion that the lack of specificity in the supervisor’s email

undercuts the allegations in the notice of proposed removal, we disagree. The

administrative judge credited the supervisor’s account of the appellant’s

statements based on witness demeanor, along with the appellant’s own admission

that she perceived the supervisor’s statements as harassing, retaliatory, and

defamatory. She concluded that the appellant likely reacted negatively to the

supervisor’s statements in the manner described in the proposed removal. See ID

at 15-16. The appellant’s arguments on review are not sufficient to disturb the

administrative judge’s finding. Haebe, 288 F.3d at 1301 (stating that the Board

may overturn demeanor-based credibility determinations only when it has

“sufficiently sound” reasons to do so); see Faucher v. Department of the Air

Force, 96 M.S.P.R. 203, ¶ 8 (2004) (stating that “sufficiently sound” reasons for

overturning an administrative judge’s demeanor -based credibility determinations

include circumstances when the administrative judge’s findings are incomplete,

inconsistent with the weight of evidence, and do not reflect the record as a

whole).

Finally, regarding the two specifications of conduct unbecoming a Federal

employee, the agency alleged that on two separate occasions on March 14, 2017,

the appellant hung up the telephone on her supervisor while he was still speaking

to her. On review, the appellant denies hanging up on her supervisor, but she

does not offer any specific argument challenging the administrative judge’s

findings regarding these specifications. PFR File, Tab 1 at 7; see ID at 16-17.

Accordingly, we see no reason to disturb those findings on review. See Crosby,

74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R. at 359.

We modify the initial decision to clarify that the agency proved that the appellant

made the charged false statements with the requisite intent to defraud agency

officials for her own private material gain.

With respect to the false statement charge, the appellant argues on review

that the administrative judge analyzed the charge under the wrong legal standard.

PFR File, Tab 1 at 16-17. The specifications of the false statements charge relate

to an email the appellant sent on March 29, 2017, in which she accused her

supervisor of vowing to use his position to “slander [the appellant’s] credibility

during the course of [her] work performance,” and threatening the appellant that

he would “discipline [her] for speaking out,” neither of which was true. IAF,

Tab 15 at 95; see IAF, Tab 18 at 8-9. As the appellant correctly notes, to prove a

charge of false statements or falsification, an agency must prove by preponderant

evidence that the appellant: (1) supplied wrong information; and (2) she did so

knowingly and with the intention of defrauding, deceiving, or misleading the

agency. Haebe, 288 F.3d at 1305; see Leatherbury v. Department of the Army ,

524 F.3d 1293, 1300 (Fed. Cir. 2008). In Boo v. Department of Homeland

Security, the Board clarified that the second element of the charge requires that

the agency prove that the appellant’s falsification was done for her own “private

material gain.” Boo, 122 M.S.P.R. 100, ¶¶ 10-12 (modifying Board case law to

incorporate the elements of falsification established in Leatherbury). The

appellant argues that, although the administrative judge correctly identified the

required intent element of the falsification charge, she failed to address whether

the agency had proven that she made the statements in the email for her own

private material gain. PFR File, Tab 1 at 16-17. The appellant argues that

because neither the initial decision nor the agency’s filings discussed whether the

appellant made the statements in the email for her own “private material gain,”

neither specification can be sustained. Id.

Although the administrative judge did not specifically identify the “private

material gain” language from Boo in the initial decision, her findings clearly

reflect that the appellant made the statements in the emails for her own private

material gain. ID at 20-25. As the agency correctly notes, the Board emphasized

in Boo that what is defined as private material gain should be considered “quite

broad,” and constitutes any “advantage to be secured [by the employee],” and is

“by no means limited to monetary gains arising from a falsification.” Boo,

122 M.S.P.R. 100, ¶ 13 (quoting Bradley v. Veterans Administration, 900 F.2d

233, 237 n.6 (Fed. Cir. 1990)); see PFR File, Tab 3 at 23. In discussing whether

the appellant made the statements in the email with the intent to deceive or

mislead the agency, the administrative judge observed that the appellant copied

her second-level supervisor on the email in which she made the false statements,

and concluded that it was more likely true than not that the appellant did so with

the purpose of misleading her second-level supervisor into taking action against

her supervisor based on the accusations. ID at 22; see IAF, Tab 18 at 8. Based

on what the administrative judge identified as the appellant’s obvious frustration

with her supervisor, as well as her effort to falsely cast her supervisor in a

negative light, the administrative judge concluded that the appellant made the

false statements with the intent to deceive her second-level supervisor about the

actions of her first-level supervisor. See ID at 22-23.

This same evidence provides ample support for the conclusion that the

appellant made the false statement for her own private material gain. As the

administrative judge indicated, the appellant attempted to cast her supervisor in a

negative light by making the false statements about him with the goal of spurring

the second-level supervisor to take action against her supervisor. ID at 22. If the

appellant had succeeded in convincing her second-level supervisor to take some

sort of action against her supervisor, it would have been to her advantage. Id.

Such an objective would fit within Boo’s broad definition of private material

gain. See Boo, 122 M.S.P.R. 100, ¶¶ 10-13. Alternatively, even if the appellant’s

objective was merely to bolster her second-level supervisor’s perception of the

appellant at her own supervisor’s expense, by characterizing her supervisor in a

negative or unflattering light, that would also meet Boo’s broad definition of the

private material gain element. See id. Accordingly, to the extent the

administrative judge failed to specifically conclude that the appellant sent the

email identified in the false statements charge for her own “private material

gain,” we modify the initial decision to conclude that, based on our review of the

record, the agency met its burden of proving this element, and therefore proved

both specifications of the charge and the charge itself.

Finally, although the appellant does not challenge the administrative

judge’s findings regarding any of her affirmative defenses on review, we take this

opportunity to clarify one of those findings. In rejecting the appellant’s

affirmative defense of reprisal for EEO activity, the administrative judge

concluded that, although the responsible agency management officials were aware

of the appellant’s prior EEO activity, there was little evidence that they had any

motive to retaliate against the appellant, and the record was devoid of any

evidence that the appellant’s EEO activity played any role in the decision to

remove her. ID at 28-29. In analyzing this defense, the administrative judge

cited to the standard set forth in Savage v. Department of the Army, 122 M.S.P.R.

612, ¶¶ 48-51 & n.12 (2015), overruled in part by Pridgen v. Office of

Management and Budget, 2022 MSPB 31, and the standard set forth in Warren v.

Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986). ID at 27. The

correct standard for analyzing these claims of EEO reprisal is set forth in

Pridgen, 2022 MSPB 31.

In this case, the EEO activity at issue is a formal complaint in which the

appellant alleged discrimination and reprisal in violation of Title VII, the Age

Discrimination in Employment Act (ADEA), and the Rehabilitation Act of 1973.

RAF, Tab 12 at 28-29. To prove a claim of retaliation under Title VII or the

ADEA, the appellant would need to show that her protected activity was at least a

motivating factor in the action under appeal. Pridgen, 2022 MSPB 31, ¶¶ 20-22,

30. To prove a claim of retaliation under the Rehabilitation Act, the appellant

would need to show that the prohibited consideration was a but-for cause of the

action under appeal. Id., ¶¶ 46-47. In her initial decision, the administrative

judge found insufficient evidence to conclude that the appellant’s EEO activity

motivated either the notice of proposed removal or the removal decision itself.

ID at 29. This is tantamount to a finding that the appellant did not satisfy the

motivating factor standard. Because the appellant did not satisfy the motivating

factor standard, she also did not satisfy the but-for standard. See Johnson v.

Department of Veterans Affairs, 2023 MSPB 9, ¶ 5 n.2. We find that the

appellant received sufficient notice of her burden on this affirmative defense,

IAF, Tab 14 at 1-4, and that application of Pridgen would not warrant a different

result. Additionally, as previously noted, the appellant does not challenge the

administrative judge’s analysis of this affirmative defense on review. 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 to reverse an initial decision; 5 C.F.R. § 1201.115 (“The Board normally

will consider only issues raised in a timely filed petition or cross petition for

review.”). For the foregoing reasons, we affirm the initial decision sustaining the

appellant’s removal, as modified by this Final Order.

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

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.

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

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

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

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

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

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

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

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

should contact that forum for more information.

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

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

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

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

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.

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