Opinion

LaGrace Roberts-Harvey v. Department of the Army

Court: Merit Systems Protection Board
Filed: May 14, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.0%

noting that there is a sufficient nexus between an employee’s conduct and the efficiency of the service when the conduct occurred in part at work

How later courts described this case

noting that there is a sufficient nexus between an employee’s conduct and the efficiency of the service when the conduct occurred in part at work

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LAGRACE BETTINA ROBERTS- DOCKET NUMBER

HARVEY, CH-0752-19-0214-I-1

Appellant,

DATE: May 14, 2024

DEPARTMENT OF THE ARMY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tia Thornton , Esquire, Atlanta, Georgia, for the appellant.

Erika McPherson and Paul Carlson , Redstone Arsenal, Alabama, 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

affirmed the agency’s removal action. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

interpretation of statute 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. We MODIFY the initial

decision (1) to find that the agency established nexus between the appellant’s

proven misconduct and the efficiency of the service, (2) to clarify the appellant’s

burden for proving her affirmative defense of sex discrimination, (3) to find that

the appellant’s disclosures of wrongdoing by a non-Federal Government entity

are not protected because they do not implicate the Government’s good name or

interests, and (4) to vacate the portions of the initial decision finding that the

appellant’s disclosures were not a contributing factor in the agency’s decision to

remove her and that the agency proved by clear and convincing evidence that it

would have taken such an action absent her disclosures. Except as expressly

modified as described herein, we AFFIRM the initial decision.

BACKGROUND

The agency employed the appellant as a GS-13 Procurement Analyst in

Kuwait. Initial Appeal File (IAF), Tab 6 at 16. On November 13, 2018, the

agency proposed the appellant’s removal based on three charges: (1) use of

official position and access to information to assist a non -Federal entity in

obtaining contracts with the U.S. Government in return for money; (2) acceptance

of gifts and gratuities from a non-Federal entity in exchange for using her official

position to help secure business with the U.S. Government; and (3) failure to

disclose gifts from foreign entities as required by law. Id. at 25-32. The

appellant was provided with an opportunity to respond, and she did so. Id.

at 23-24. Effective February 5, 2019, the agency removed the appellant from her

position. Id. at 17-22.

The appellant filed an appeal with the Board challenging the removal.

IAF, Tab 1. She also raised affirmative defenses of sex discrimination, reprisal

for whistleblowing activity, and violations of due process. IAF, Tabs 1, 20.

After holding the appellant’s requested hearing, the administrative judge issued

an initial decision sustaining the removal. IAF, Tab 33, Hearing Compact Disc

(HCD), Tab 35, Initial Decision (ID). The administrative judge found that the

agency proved its charges by preponderant evidence, that the appellant did not

prove any of her affirmative defenses, and that the penalty of removal was

reasonable. ID at 3-28.

The appellant has filed a petition for review of the initial decision. Petition

for Review (PFR) File, Tab 1. The agency has not filed a response to the petition

for review.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency proved its charges by preponderant evidence.

On review, the appellant generally asserts that “the charges were not

substantiated,” PFR File, Tab 1 at 9, but she does not explain why she believes

that there was no evidence to support the agency’s charges. Based on her

credibility determinations, the parties’ stipulated facts, and other evidence in the

record, the administrative judge found that the agency proved all three charges,

ID at 3-18, and we find no basis to disturb the administrative judge’s findings in

this regard, 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 reached

well-reasoned conclusions); Broughton v. Department of Health & Human

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

The agency established nexus.

In addition to the requirement that the agency prove its charge, the agency

must also prove that there is a nexus, i.e., a clear and direct relationship between

the articulated grounds for the adverse action and either the appellant’s ability to

accomplish his duties satisfactorily or some other legitimate Government interest.

Hoofman v. Department of the Army, 118 M.S.P.R. 532, ¶ 16 (2012),

aff’d, 526 F. Appx. 982 (Fed. Cir. 2013). An agency may show a nexus between

off-duty misconduct 2 and the efficiency of the service by three means:

(1) a rebuttable presumption in certain egregious circumstances; (2) preponderant

evidence that the misconduct adversely affects the appellant’s or co -workers’ job

performance or the agency’s trust and confidence in the appellant’s job

performance; or (3) preponderant evidence that the misconduct interfered with or

adversely affected the agency’s mission. Kruger v. Department of Justice,

32 M.S.P.R. 71, 74 (1987). The administrative judge did not explicitly discuss

nexus in this case. We modify the initial decision to find that the agency

established nexus between the appellant’s proven misconduct and the efficiency

of the service.

The deciding official stated in the decision letter and her testimony that the

appellant’s misconduct adversely affected the agency’s trust and confidence in

her job performance. IAF, Tab 6 at 17; HCD (testimony of the deciding official).

The Board has held that the charge of use of official position for personal gain

has “an obvious impact on the efficiency of the service.” Lappin v. Department

Although it is not clear from the record, it appears that the misconduct in question

occurred off-duty, at least in part. Even if the misconduct in question involved a

combination of on- and off-duty misconduct, the outcome remains the same. See, e.g.,

Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987) (noting that there is

a sufficient nexus between an employee’s conduct and the efficiency of the service

when the conduct occurred in part at work).

of Justice, 24 M.S.P.R. 195, 196-97 (1984). Under the particular circumstances

of this case, we find that the agency has established nexus.

The appellant failed to prove her affirmative defenses of sex discrimination,

whistleblower reprisal, and a due process violation.

On review, the appellant generally challenges the administrative judge’s

finding that she failed to prove her affirmative defenses. PFR File, Tab 1

at 12-13. However, she does not support her vague allegations of sex

discrimination, retaliation for whistleblowing, and violation of due process with

any new and material evidence. See 5 C.F.R. § 1201.115(d). Although the

appellant raises no persuasive claim of error in the administrative judge’s

analysis, we modify the initial decision to clarify the appellant’s burden for

proving her affirmative defense of sex discrimination, and to evaluate whether, as

part of her claim of whistleblowing retaliation, the appellant’s disclosures

implicate the Government’s good name or interests, still finding that the appellant

has not proven any of her affirmative defenses.

Sex discrimination

The appellant asserts that the administrative judge erred in finding that she

failed to prove her claim of sex discrimination. PFR File, Tab 1 at 12. In

particular, she contends that the administrative judge refused to listen to her

claim at the hearing. Id. The record shows otherwise.

In the initial decision, the administrative judge considered her allegations

but noted that they were deficient. ID at 18-20. In so doing, she cited to the

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973). ID at 18-19. As the Board has since clarified, to

prove a claim of sex discrimination, an appellant must show that the prohibited

consideration was at least a motivating factor in the action under appeal. Pridgen

v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-22.

In evaluating the appellant’s claim, we have applied the framework set

forth in Pridgen. We need not remand the appeal because the record is fully

developed on this issue, however, and we agree with the administrative judge that

the appellant has not shown that her sex was a motivating factor in the agency’s

decision to remove her.

Whistleblower reprisal

The appellant asserts that the administrative judge erred in finding that she

failed to prove her claim of whistleblower reprisal. PFR File, Tab 1 at 12.

In particular, she contends that the administrative judge removed some of her

exhibits, but she does not identify any such exhibits. This argument is therefore

not persuasive.

Moreover, as the administrative judge properly noted, the appellant’s

allegations of wrongdoing were against a non-Federal Government entity. Under

the Whistleblower Protection Enhancement Act of 2012, a disclosure of alleged

wrongdoing committed by a non-Federal Government entity is protected under

5 U.S.C. § 2302(b)(8) only when the Government’s interests and good name are

implicated in the alleged wrongdoing, and the employee shows that she

reasonably believed that the information she disclosed evidenced that

wrongdoing. Covington v. Department of Interior, 2023 MSPB 5, ¶ 8.

Applying Covington to the facts of this case, we find that the appellant has

not shown that the Government’s interests and good name are implicated in the

alleged wrongdoing, and/or that she reasonably believed that the information she

disclosed evidenced such wrongdoing. See id. Accordingly, we modify the

initial decision to find that the appellant’s disclosures were not protected.

Because we have concluded that the appellant’s disclosures are not

protected under 5 U.S.C. § 2302(b)(8), we need not address whether any such

disclosures were a contributing factor in the agency’s decision to remove the

appellant or whether the agency proved by clear and convincing evidence that it

would have taken such an action absent the disclosures. Accordingly, we vacate

the portions of the initial decision that reach these issues.

Due process violations

The appellant asserts that she was not provided with due process because

she was given “misleading [m]emorandums” that contained “falsified

information” in connection with the revocation of her security clearance.

PFR File, Tab 1 at 13. As the administrative judge observed, however, the

appellant raised no allegations that she did not receive notice of the charges

against her, an explanation of the agency’s evidence, or an opportunity to respond

to the charges. ID at 24. To the extent the appellant is alleging that the deciding

official was biased or relied on falsified information, she has produced no

evidentiary support for such a conclusion. See Martinez v. Department of

Veterans Affairs, 119 M.S.P.R. 37, ¶¶ 10-11 (2012) (finding that an appellant

alleging a due process violation has the burden of proving a decision maker’s

actual bias or an intolerable risk of unfairness); see also Oliver v. Department of

Transportation, 1 M.S.P.R. 382, 386 (1980) (stating that, in making a claim of

bias or prejudice against an administrative judge, a party must overcome the

presumption of honesty and integrity that accompanies administrative

adjudicators).

Accordingly, we agree with the administrative judge that the appellant was

provided with due process. ID at 22-24. 3

The penalty of removal was reasonable.

Although the appellant argues that the penalty of removal was not

reasonable, PFR File, Tab 1 at 13, we agree with the administrative judge that the

penalty of removal does not exceed the tolerable bounds of reasonableness for the

sustained charges, see Herrera-Martinez v. Social Security Administration,

84 M.S.P.R. 426, 427, 432-33 (1999) (reversing the administrative judge’s

decision to mitigate the penalty of removal when the appellant defrauded the

We further find that the appellant’s remaining arguments regarding procedural and

evidentiary matters provide no basis for disturbing the administrative judge’s

evidentiary findings.

Government and accepted gifts from claimants, despite his 7 ½ years of Federal

service and lack of prior discipline); see also Hayes v. Department of Labor,

65 M.S.P.R. 214, 216-17, 219-20 (1994) (finding removal to be a reasonable

penalty when the appellant improperly accepted cash payments and interfered

with an official investigation, despite his 17 years of Federal service and lack of

prior discipline).

Accordingly, we affirm the initial decision as modified herein.

NOTICE OF APPEAL RIGHTS 4

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

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

should contact that forum for more information.

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.

(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. 5 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.