Petition for Writ of Certiorari — Lewis v. Department of Agriculture (No. 08-128)
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08128 jy 25 2008
OFFICE OF THE CLERK
, In the
Supreme Court of the United States
Donald R. Lewis
Petitioner
Vs.
Department of Agriculture
Respondent
On Petition For A Writ Of Certiorari To United States
Court Of Appeals
For The Federal Circuit
Petition For Writ Of Certiorani
Donald R. Lewis
Pro Se
P.O. Box 1142
f Kirbyville, Texas 75956
(409) 423-2799
Questions Presented
Did the Respondent commit harmful! procedural!
error under 5 USC 7701 (c) (2) when it violated its
own procedural guidelines for misconduct
investigations and reports and caused substantial
prejudice to Petitioner's individual rights by affecting
the Agency's decisions, violate Petitioner's due
process rights, and deprive him of Equal Protection
under the law when taking away his employment
interest after over 36 years of Federal Service with
No disciplinary record, a history of the highest/near
perfect performance rating, 2 years in the U.S. Army
by way of the draft during the Vietnam War with an
Honorable discharge and Letter of Appreciation
from General William Westmoreland for his war time
service? Further, did the Appeal Court and Merit
Systems Protection Board violate the same stated
rights and abuse their discretion when they failed to
find harmful procedural error? Petitioner and alll
employees should be provided the protection of the
procedural guidelines. Additionally did they
ignore the prohibited personnel practice committed
when the Respondent sought to force Petitioner to
sign a fraudulent position description, initiated the 40
year plus Investigation that he was subjected to
thereafter, and removal?
Did the respondent violate Petitioner's Due Process
Rights, Fifth Amendment of The U.S. Constitution,
Equal Protect Under the Law, and the wrongfully
taking away of his protected property interest in his
employment under the U.S. Constitution's Fifth
Amendment by refusing and failing to provide
requested needed specifics such as descriptive
details of alleged conclusory comments about
employees weight, and dates, times, and places of
the alleged inappropriate comments and then
charging him with making false statements during
an official investigation when he would not agree
with the statement presented under the vague,
conclusory, and non-specific charge? On the same
issue, did the Respondent violate its own procedural
guidelines which states "the report should tell a story
of what happened, who was involved, when and
where it happened and why it happened? Further,
did the Board and Appeal Cour violate the same
rights of Petitioner and improperly shifted to
Petitioner the burden of proving that he did not
make false statements during an official
Investigation? All American citizens deserve above
protections.
Did the Appeal Court and Merit Systems Protection
Board abuse their discretion, violate Petitioner's due
process rights, and deprive him of Equal Protection
of the Law by substituting a new charge to replace
‘directing’ after the hearing in order to find for
Respondente
Did the Appeal Court and Merit Systems Protection
Board abuse their discretion, violate Petitioner's due
process rights, and deprive him of Equal Protection
of the Law by adding a new charge of “pattern of
conduct over time” after the hearing in order to find
for Respondent and seek to justify the Respondent's
inability to provide Petitioner with needed detail
descriptive specifics and dates, times, and places of
alleged incidents and alleged conclusory, vague
comments? Failure to provide such violates
Respondents own procedural guidelines.
Did the Board violate Petitioner's Due Process Rights
and right to Equal Protection under the Law when it
made the erroneous and biased general
demeanor/credibility finding on page 10 of ifs initial
decision and then using the same to harm Petitioner
on credibility and findings for the remainder of the
decision and in wrongfully taking away his property
interest in his employment under the 5th
Amendment of the U.S. Constitution? Did the
Appeal Court violate the same rights of Petitioner
and abuse its discretion in deferring to the Board's
erroneous demeanor/credibility findings including
such error as failing to describe Petitioner's carriage,
behavior, manner, and appearance? Did the
Appeal Court and Board abuse their discretion and
violate Petitioner's due Process Rights, Equal
Protection Under the Law, and the wrongful taking
of his employment by failing and refusing to address
the issues under Seavello v. Department of Navy, 4
MSPB 239 (1980), and the prohibited personnel
practice of seeking to force him to sign a fraudulent
position descnption and reprisal for his failure to do
so?
Did the Respondent violate Petitioner's rights to
Equal Protection Under the Law, due process rights,
and Fifth Amendment of the U.S. Constitution by
10.
charging him with unintentional/negligence and
then applying the element of intent in reaching the
penalty of removal? This would allow an
organization to take away employees employment
rights without proving the element of intent. Further,
did the Appeal Court and Merit Systems Protection
Board violate the same stated rights and abused
their discretion when they sustained the findings and
penalty of removal? Respondent never refuted that
they knew Petitioner was being paid the
compensatory time for over 10 years in the manner
processed by responsible timekeepers?
Did the Appeal Court and Merit Systems Protection
Board abuse their discretion and deprive Petitioner
of Equal Protection of the Law by sustaining a
specification of catching J. Nguyen’'s arm as
inappropriate conduct when she swung at Petitioner
In a playful act that she did not report until many
months later after learning of being impacted by a
reduction-in-force and then clearly testifying
that it was “petty”?
Did the Appeal Court engage in judicial
misconduct, abuse its discretion, and deny Petitioner
Equal Protection of the law, when considering
retirement eligibility wnen making a decision in
Petitioner's case even though the subject was not in
issue?
Did the Appeal Court and Board abuse their
discretion and deny Petitioner. Equal Protection of
the Law by stating that matters are in evidence in
iV
Table of Contents
Cover Page
Questions Presented
Table of Contents
Table of Cited Authorities Cases
Constitution, Statutes, Procedures
Others
Opinions and Orders Below
Jurisdiction
Statement of The Case & Reasons For
Granting The Writ
Conclusion
List of Appendices
Vi - ix
TABLE OF CITED AUTHORITIES
Cases Page
Barresi v. U.S. Postal Service, 65 MSPR 656, 18
665 (1994)
Blake v. Department of Justice, 81 MSPR 16
394 (1999)
Cheney v. Department of Justice, 479 F.3d 19
1343 (2007)
Edmound C. Broussard v. Department of 4, 14,
Navy, 27 MSPR 382 (1985) 33
EEOC v. Ford Motor Co. 645 F.2d 183 18, 20
(1981)
Garza v. Department of Army, 57 MSPR 25, 26
214 (1993)
Gilbert v. Homar, 520 U.S. 924, 930 (1997) 20
Goldberg v. Kelly, 397 U.S. 254, 267-68 18, 19
(1970)
Goldstein v. Department of 29
Transportation, 51 F.3d 1570 (1995)
Gottlieb v. Veterans Administration 17, 22,
39 MSPR 606 (1989) 24
v7
Hazelwood School District V. United
States 433 U.S. 299 (1977)
Heebe. v. Department of Justice, 288
F.3d 1288 (2002)
Hillen v. Department of Army, 35 MSPR
453 (1987)
Jacques E. Lamour and Scott Roseberg v.
Department of Justice, 2007 MSPR 185
(2007)
Joseph A. Seavello v. Department of the
Navy, 4 MSPR 239 (1980)
King v. Nazelrod, 43 F.3d 663 (1994)
La Chance v. Erickson, 522 U.S. 262 (1998)
La Chance v. Merit Systems Protection
Board, 147 F.3d 1357 (1998)
Mason v. Department of Navy, 70 MSPR
584 (1996)
McIntire v. Federal Emergency
Management Agency, 55 MSPR 578 (1992)
Mendez v. Department of Treasury,
88 MSPR 596 (2001)
20
, 18
Naekel v. Department of Transportation,
782 F.2d 975 (1986)
Nazelrod v. Department of Justice, 54
MSPR 461 (1992)
Nelson v. U.S. Postal Service, 79 MSPR
314 (1998)
Presseisen v. Swarthmore Cci'lege 442 F,
Sapp. 593 (1977)
Ragolla v. U.S. Postal Service, 983 F.2d
1086 (1992)
Riley v. Department of Army, 53 MSPR 683
(1992)
Shaw v. Department of the Air force,
80 MSPR 98 (1998)
Special Counsel v. Eubanks 76 MSPR 405
(1997)
Teamsters v. United States 431 U.S. 324
(1977)
Constitution, States, Procedures
Prohibited Personne! Practice 5 USC 2302
(b)
5th Amendment of the U.S. Constitution
24
16
18, 20
be
17, 24
18, 20
Equal Protection Under the Law
Due Process Rights
Department of Agriculture Procedural
Guidelines For Employee Misconduct
investigations and Reports
5 CFR 1201.56 (c) (3)
5 USC 2302 (b)
5 U.S.C. 7701 (c) (2)
Opinions And Orders Below
Donald R. Lewis V. Department of Agriculture,
2008-3031,March 7, 2008 , United States Court of
Appeals For The Federal Circuit, Decision
Donald R. Lewis v. Department of Agriculture,
Docket Number DA-0752-06-0686-I-1, October 3,
2007, Merit Systems Protection Board, Final Order
Donaid R. Lewis v. Department Of Agriculture,
Docket Number DA-0751-06-0686-1-1, May 10, 2007,
Merit Systems Protection Board, Initial Decision
Donald R. Lewis v. Department of Agriculture, 2008-
3031, May 1, 2008, Order of United States Court of
Appeals For The Federal Circuit denying Petifion For
Rehearing
Jurisdiction
The date on which the United States Court of
Appeals For the Federal Circuit decided my case
was March 7, 2008. Appendix A.
A timely petition for rehearing was denied by the
United States Court of Appeals For the Federal
Circuit on the following date: May 1, 2008, and a
copy of the order denying rehearing appears as
Appendix D.
The Jurisdiction of this Court is invoked under 28
U.S.C. Section 1254 (1).
x!
Appendix A
A-1 thru
A-19
Appendix B
B-1 thru
B-4
Appendix C
C-1 thru
C-127
Appendix D
D-1 thru
D-3
Appendix E
E-1 thru
E-4
Appendix F
F-] thru
F-5
Appendix G
G-1 thru
G-8
Appendix H
H-1] thru
H-1]
Index To Appendices
Decision of the United States
Court of Appeals For The
Federal Circuit
Merit Systems Protection Board
Final Order
Merit Systems Protection Board
Initial Decision
Order of The United States Court
of Appeals For The Federal
Circuit Denying Petition For
Rehearing
Deparment of Agriculture
Procedural Guidelines For
Employee Misconduct
Investigations and Reports
Agency Director's Statement
(Jonn Orntego, Former)
Agency Statement (Shirley
LeBlanc)
Psychological Stress Evaluators
(Voice Lie Detector) tests,
Resume. Process, and
x!
Appendix |
l-} thru
I-11
Appendix J
J-1 thru
J-10
Appendix K
K-] thru
K-27
Appendix L
L-1 thru
L-37
Appendix M
M-1 thru
M-3
Appendix N
N-1 thru
N-2
Appendix O
O-1 thru
O-7
Technique
Cecil Mason v. Department of
The Navy, 70 MSPR 584 (1996)
Edmound C. Broussard v.
Department of, The Navy, 27
MSPR 382 (1985)
Agency Statement (Patricia W.
Duvernay) and Additional
Information to Affidavit
USDA Guide to Disciplinary
Penalties
Naomi Riley v. Deparment of
the Army
Agency Statement (Artimese
Epps)
Letter to Chief Judge, U.S. Court
of Appeals for Federal Circuit on
Wrongful Consideration of
Retirement Eligibility
XII
Statement of The Case
The Petitioner entered Federal employment
in 1971 as a Labor Management Relations
Examiner with the National Labor Relations Board.
in February 1989, he transferred to the U:S.
Department of Agriculture, National Finance
Center (NFC), in New Orleans, Louisiana as a GS-12
Supervisory Labor Relations Specialist, up graded
to GS-13. In 1997, former NFC Director John Ortego
selected Petitioner to design, develop, and
manage what later became known as the Equal
Employment Opportunity and Workforce Services
Staff (EEOWSS), due to a crisis of employment
environment issues. See Appendix F.
In the position as manager, Petitioner almost
single-handedly changed the employment
environment of the Agency from one that had
become nationally known for its poor employment
environment to one nationally recognized for ifs
model employment environment. He won nathonal
awards and recognition for himself and the
Respondent, including such awards as the Office
of Personnel Management Directors Award and
the USDA's Secretary's Award for operating an
ficient, effective, and discrimination-free
rgdnization. See Appendix F. Petitioner is the only
manager of EEO or EEOWSS programs for the
Respondent to have won such awards for himself
and the programs. He became known as one of
the most innovative and achieving EEO managers
in the Federal Government, prior to the charges in
]
the within matter, Petitioner, in his over 36 year
employment history with the Federal Government,
had never been the subject of any disciplinary
action. His performance was always at the
Outstanding or Superior levels, with his last
performance rating at the Outstanding level. He
served 2 years in the U.S. Army by way of the draft
during the Vietnam War with an Honorable
Discharge and Letter of Appreciation from General
William Westmoreland for his war time service. The
investigation and charges were instigated and
orchestrated by one employee using if to get a
promotion (Patricia Bachemin), and another
employee (J. Nguyen), and her friends, who
wanted the ultimate decision making responsibility
to determine who would be included in the
reduction-in-force (RIF). In February 2005,
Bachemin actually went to the deciding official
and sought two things: (1) a promotion, and (2)
Petitioner's termination. She received both. The
Agency refused to present her at the hearing so
that she covid be examined by Petitioner. Virginia
Gaye Cook, Head of Operations and Agency
Misconduct Investigation Coordinator, prepared
and sent a promotion position description to
Petitioner for promotion of Bachemin that was
fraudulent. By regulation and practice, Petitioner
should have been the preparer of the position
description. Cook became upset when Petitioner
refused to sign the fraudulent position description.
Bachemin was promoted shortly after Petitioner's
proposed removal and administrative leave. The
refusal of the Board and Appeal Count to address
2
the position description and the Seavello issues
deprived petitioner of due process, equal
protection of the law, and of protection against a
prohibited personnel practice. Kushindana, a
friend of J. Nguyen, told Petitioner that if he
followed through with J. Nguyen being impacted
by the RIF instead of M. Nguyen, that he could
expect fo have problems from her and others in
the office. On August 3, 2005, Kushindana told
Petitioner that since it appeared that he wasn't
going to leave, she was going ic have to run him
off. See Appendix H. Only 16 days later, August 19,
2005, the Investigator who had been operating in
collusion with Kashindana, Bachenin, J Nyagen,
and others, told Petitioner at the opening of his
initial interview, “You ought to be out of here” and
that he should be retired. Given the Investigator’s
conduct and gross procedural violations, it is
Petitioner's position that the Investigator was hired
to build a case for his removal.
Cook, arranged for Petitioner to be
investigated by a contract investigator with whom
she has close ties. The Investigator was instructed
to investigate Petitioner for a period spanning over
40 years including years before his employment by
the Federal Government. The charges were vague
and non-specific as to when and what Petitioner
allegedly did and denied his due process rights.
When Petitioner could not agree with the
conclusory comments under the charges on
employees’ weight, he was charged with making
false statements during an official investigation.
3
The investigator violated every provision of the
procedural guidelines for investigation dated
March 24, 2003 which states that "Investigators
should avoid personal opinions, or conclusions,
and should not make disciplinary
recommendations a part of the report." See
Appendix E. The Investigator violated these
provisions and thereby denied Petitioner due
process and equal protection under the law. This
caused substantial prejudice to Petitioner's
individual rights by affecting the agency's decision.
Tne Appeal Court and tribunals below failed
to find harmful procedural error even though it is
clear that the Respondent violated its own
procedural guidelines in the investigation of
Petitioner and in the use of the Report of
Investigation in reaching the penalty decision to
remove Petitioner. The Appeal Court and tribunals
below violated Petitioner's Due Process Rights, Fifth
Amendment of The U.S. Constitution, and Equal
Protection Under The Law in their findings on
Petitioner being provided conclusory statements
rather than requested needed specifics such as
descriptive details of alleged conclusory
comments, dates, times, and places of alleged
inappropriate comments, and the finding of
Petitioner's inability to agree with the vague,
conclusory, and non-specific charges as making
false statements during an official investigation.
They changed the charge on “directing” after the
hearing and grossly misdescribed employees on
the issue and their relationship with Petitioner. The
4
Appeal Court and tribunals below upheld
Respondents charging Petitioner with
unintentional/negligence and then applying the
element of intent for the same charges by
sustaining the Penalty of Removal on the basis of
intent. See Edmound C. Broussard v. Department
of Navy, 27 MSPR 382 (1985) (Appendix J), wherein
the Agency charged the Appellant with
negligence but improperly removed him based on
the element of intent. The Board and Appeal Court
accepted the Respondent's use of conclusroy,
boiler plate language on penalty without a
balanced and reasoned discussion of all relevant
and mitigating factors. The table of penalties was
not honestly considered.
When it became clear to Petitioner that the
Respondent and this particular group of
employees were determined to destroy him,
Petitioner sought and received favorable
consideration for employment by two other
Federal agencies. One Agency offered Petitioner
a position and he accepted. However, one day
after the agency contacted the Respondent for
transfer of Petitioner, the offer was withdrawn. _
When the other agency contacted Respondent for
reference on Petitioner, the agency stopped their
process of consideration. It became clear fo
Petitioner at this point that the Respondent was
interested in destroying Petitioner and not just
removing him.
On August 29, 2005, Hurricane Katrina made
2
landfall in New Orleans, Louisiana, and Petitioner
evacuated. On February 22, 2006, Petitioner
returned to New Orleans and Respondent facility.
On March 28, 2006, 34 days after Petitioner's return,
Respondent issued Petitioner a proposed removal
letter and placed him on administrative leave.
Effective September 16, 2006, Petitioner was
removed.
On April 18, 2008, during a return call to the
Appeal Court on a request to submit copies of
case decisions, an Appeal Court personnel began
stating/asking Petitioner repeatedly out of the
“blue”, “you can retire can't you2” This placed
Petitioner on notice that the Appeal Court had
considered retirement eligibility wnen making a
decision in his case. Petitioner has never raised an
issue of retirement eligibility with any fribunal
considering his case. See Appendix O.
The Appeal Court states on page 6 of its
decision that Byrne's affidavit stated that she
learned of the contract employee’s conduct from
another employee to whom |, J. Nguyen and
Kushindana had complained. This is not in Byrnes
affidavit, The Appeal Court states on page 8 of
their decision that “Mr. Lewis acknowledged that
on at least one occasion he picked up one copy
of Ms. Nguyen faxes and delivered it fo her.” There
is no evidence in the record that Petitioner ever
made such acknowledgement. On page 49 of the
Board decision, the AJ states “Tne record further
reflects that M. Nguyen's non-work-related
6
activities continued into August 2005.” Not true and
not in the record. M. Nguyen was not in America
from July 26, 2005. thru August 26, 2005. Sne was on
administrative leave from August 26, 2005, thru
November 14, 2005, due to Hurricane Katrina, The
stating that such matters are in evidence in the
record is in error, an abuse of discretion, and
harmed Petitioner by taking away his property
interest in his employment.
REASONS FOR GRANTING THE PETITION
Under 5 U.S.C. 7701 (c)(2), the Board is required to
overturn the action of the agency, even where the
agency has met the evidentiary standard in
paragraph (q) of this section, if the appellant:
3 Shows harmful error in the application of the
agency's procedures in arriving at its
decision;
a. Shows that the decision was based on any
prohibited personnel practice described in 5
U.S... 2302 (b): or
3: Shows that the decision was not in
accordance with the law.
Harmful error has been defined as error by the
agency in the application of its procedures that is
likely to have caused the agency to reach a
conclusion different from the one it would have
reached in the absence or cure of the error.
The agency's action constituted harmful error as
defined at 5 CFR 1201.56(c)(3) when it failed to
follow the procedures outlined in its procedure
issued to "“Agency/Mission Area Employee
Misconduct Investigation Coordinators" to ensure
Department wide standards of quality and
consistency in the preparation of employee
misconduct investigation reports. See Appendix E.
The guidelines provides:
iB Investigators should avoid personal opinions
or conclusions, and should not make
disciplinary recommendations a part of the report.
_ The report should tell a story of what
happened, who was involved, when and where it
happened and why it happened.
x 9 investigators should refrain from drawing
conclusions on the merits of the allegations.
Investigators are exposed fo information
during the investigation which may not be
incorporated in the investigative file, but
nevertheless could bias the investigator relative
to any analysis of the allegations and could
8
improperly influence the decision-maker.
4, lf someone gives a statement naming
another person as having information relevant
to the allegations, get a statement from that
person. The procedure guidelines exist for the
protection of all employees of USDA and to
regulate the conduct of "investigators" assigned to
investigate misconduct allegations of any
employee of USDA. The procedure guidelines do
not provide for any employee to be provided
less protection than is in the procedure guidelines.
Appendix E. To say that Respondent can provide
Petitioner and some of its employees less
protection than is provided in tts procedural
guidelines by assigning a contract investigator
rather than an employee investigator
deprives employees of equal protection
under the law andis notin accordance with the
principle of fairness for American Citizens.
The investigator provided personal opinions,
conclusions, and recommendations, including the
recommendation of Petitioner's removal, in her ROI
which was against written USDA procedural
guidelines. Appendix E. The Respondent violated
Petitioner's due process nghts, deprived him of
Equa! Protection under the law, and caused
substantial prejudice to his individual rights by
affecting the agency's decisions.
Without explanation or reason, Petitioner has been
subjected to an investigation spanning over 40
9
years including years before he was employed by
the Federal Government. When asked why this was
done, Lohtink, the deciding official said he did not
know. This took place because the Agency
Investigation Coordinator became upset with
Petitioner for not signing a fraudulent Position
Description, (A prohibited personnel practice and
reprisal).
The Merit Systems Protection Board's (MSPB)position
that the decision maker did not rely on the Report
of Investigation (RO}) is in error, and an abuse of
discretion. In the proposed removal dated March
28, 2006, Jonn White, Deputy Director, states:
The Report of Investigation has now been received
and | have reviewed its findings in detail. The
report substantiates serious mismanagement,
waste, abuse, and personal misconduct by you
requiring removal.
In the removal letter dated September 14, 2006,
the decision-maker states: After reviewing the
proposal letter, the ROI,...1 have reached the
following determinations on each charge.
The decision-maker goes on to stafe fhat:
The Nationa! Finance Center (NFC) issued a letter
dated March 28, 2006, to remove you, Donald
Lewis, from your Federal position based on the
results of a report of investigation (ROI), Allegations
of Misconduct and Mismanagement by Donald
10
Lewis...conducted by Kathryn T. Vengazo,
Consultant for FPMI, Inc.
With the Proposing Official clearly stating that he
reviewed the (ROI) findings in detail and the report
required the Petitioner's removal and the decision-
maker stating in the decision that he reviewed the
proposal ietier and the ROI in making his decision,
it defies any sense of logic and fairness to say the
RO! was not considered in making the decision to
remove the Petitioner. The Appeal Court states,
‘The deciding official did not testify that he did not
rely on the report. He merely stated that he did not
rely on the investigator's recommendation as to
penalty. We therefore find that the Board did not
er in rejecting Mr. Lewis’ affirmative defense.”
Appendix A. This defies all principles of credibility,
logic, and sound human and legal reasoning.
When the deciding
official wrongfully considered the investigator's
findings, personal opinions, conclusions, and other
recommendations regarding Petitioner, he
considered ingredients that go into the making of
penalty determination. The procedural guidelines
recognized the harm that would be caused to a
person when the procedure guidelines are not
followed:
investigators should refrain from drawing
conclusions on the merits of the allegations.
Investigators are exposed to information during the
investigalion which may not be incorporated in the
investigation file, but nevertheless could bias the
1]
investigator relative to any analysis of the
allegations and could improperly influence the
decision-maker.
The procedural guidelines cannot "ensure
Department wide standard of quality and
consistency’ if they do not apply to all employees,
all Investigators, and carry the force of law. The
Respondent ordered the investigation with findings,
conclusions, opinions, recommendations, including
recommendations on penalty. When some one
custom order and pay for a product they fully
intend to use what is ordered. The Respondent's
procedural guidelines should be analyzed under
the standards of a contract. A contract must be
construed in accordance with the terms and
language used in the agreement. If the terms of
the agreement are free of ambiguity and does not
conflict with the policy of the law, the contract will
be deemed to establish the rights of the parties.
Contracts are to be read and understood
according to the natural and obvious import of the
language used therein. The USDA procedural
guidelines does not distinguish between employee
investigators and contract investigators. It is for the
protection of all employees. To say that the USDA
procedural guidelines do not have any legal
weight is unconscionable. The document is replete
with words such as shall and should which are
defined in the dictionary when used in laws,
directives, etc, as an obligation or must. Appendix
E.
The Investigator’s failure to foliow the procedural
guidelines permitted the investigator's biases to
taint the entire investigation and subsequent report
thereby denying the petitioner with a fair and
impartial investigation. The agency failed to
present Bachemin and Lomi Clark, employees
among the group who led the action against
Petitioner, for the hearing. Further, the Board and
Appeal court failed and refused to consider the
prohibited personnel practice of seeking to force
Petitioner to sign a fraudulent position description
for Bachemin. The Appeal Court states on page 4
of its March 7, 2008, decision that: See Appendix A.
From the finding, the Board concluded that
he knew or should have known that he
received the overtime payments in violation of
the agency procedure. That conclusion,
however, does not necessarily follow. Mr. Lewis
may have been aware of the proper
procedures, yet he may not have known
that his timekeeper had not obtained
supervisory approval. In any event, the Board
found that the agency's charge against him did
not require a finding of intent, and it was
undisputed that the proper procedure was not
followed. We agree with the Board that the
charge does not specify an element of intent, and
we therefore affirm the Board's
determination with respect to that charge.
All of the compensatory time earned was
recorded on Petitioner's time and attendance
13
reports that were reviewed and approved by
each of his supervisors from 1994 thru 2005, over 10
years. A review of his T&A's would reveal
Petitioner's supervisors should have never expected
him to use the compensatory time earned
because he was always in a “use or lose” annual!
leave status. Appendix F. Only after Respondent
became upset with petitioner over not signing the
fraudulent position description did this become a
factor and to be part of the 40 years plus
investigation. Petitioner never saw the forms
completed for payment of compensatory time by
Gaydos, Barnes, and M. Nguyen, fimekeepers, and
they did not require his approval. Petitioner was
not negligent under any described standard of
care. He was not aware of who authorized or
approved the unused compensatory time each
year for payments. All he knew was that he
worked the extra hours and earned compensatory
time recorded, his T&A’s for the years 1994 thru
2005 had been reviewed and approved by his
supervisors, and he was paid
for compensatory time that was not used within
the specified time frame because of his inability to
take time off. It is the certifying officer's
responsibility to verify that the forms are signed by
authorized officials prior to payment. From 1994
thru 2005, over 10 years, his supervisors were Qware
that he was being paid for the unused time at the
end of every year by their review of his T&A’s and
their budget reports Appendix F. John Ortego,
NFC's Director from August 1997 to January 31,
2003, and Petitioner's first-level or second-level
14
supervisor during this time period, stated that he
expected the Petitioner to be paid for the
compensatory time earned. Appendix F.
In his response to the proposal notice and dunng’
his deposition, Pefitioner offered to reimburse the
agency for any compensatory payments received
by him that they were contending proper
management approval had not been obtained by
the timekeepers and he did so. During Petitioner's
oral response to the charges on April 26, 2006,
where in a court reporter made a transcript, the
deciding official, speaking of the compensatory
time, stated, “No, and look, | know every hour that
was on these things was approved by whoever
your supervisor was at the time.” “Page 134 of the
oral response transcript. On page 135 of the
transcript, he stated, “Well, |’m not sure it’s illegal. It
just didn't follow a process or whatever we have.”
Notwithstanding the sustaining of the charge as
unintentional/negligence, the Appeal Court and
MSPB abused their discretion and approved the
agency's removal of Petitioner based on the
element of intent. See Edmound C. Broussard v.
Department of Navy, 27 MSPR 382 (1985),
Appendix J, wherein the agency charged the
Appellant with negligence but improperly
removed him based on the element of intent. In
the instant case, the Respondent clearly charged
petitioner with unintentionally /negligence but
clearly used intent in it's penalty.
In regards to the charge of making false
15
statements during an Official investigation, the
Appeal Court states on pages 12-13 of the decision
that "The Board sustained that charge after finding
that Mr. Lewis falsely stated in an affidavit that he
never made derogatory remarks about his
employees’ weight." Appendix A. The Appeal
Court, MSPB, and Respondent violated Petitioner's
due process rights, Fifth Amendment of the U.S.
Constitution, and Equal Protection Under The Law
in regards to the finding on this charge. Further, the
AJ, Board, and Appeal Court improperly shifted to
Petitioner the burden of proving that he did not
make false statements during an official
investigation. Additionally, the Respondent
violated its own procedural guidelines for
misconduct investigation which states that “the
report should tell a story of what happened, who
was involved, when and where it happened and
why it happened.” Petitioner made a timely
request during discovery for detail descriptive
specifics, including dates, times, and places of
alleged incidents but the Agency said they did not
have any. Aft the hearing the Deciding Official
stated that he did not know when the alleged acts
occurred: that they could have occurred any time
with in the last 5 years or more. Yet he was willing
to take away Petitioner's employment after over 36
years without a disciplinary record and near
perfect performance history. Without the
requested specifics, Petitioner cannot determine if
he was at work or present at the place of the
alleged incidents or that any such incident in fact
occurred. See Mason v. Department of Navy, 70
16
MSPR 584, 586-89 (1996) Appendix |. The
Respondent has not met its burden of a specific
incident or pattern of conduct over time and of a
preponderance of evidence that Petitioner falsely
stated in an affidavit that he never made
derogatory remarks about employees weight.
Ortego, the former Director from August 1997 to
January 2003, stated that Petitioner did not
engage in such conduct and that he never
received reports of such on Petitioner. Appendix F.
Shirley LeBlanc, the agency's star witness sfated in
her affidavit that Petitioner made reference to "big
people.” No specifics were provided. Appendix G.
Also, LeBlanc stated that she was upset with
Petitioner because he had never rated her as
Outstanding and because he, as her supervisor,
would not get involved in her application for a
position in another organization over which
Petitioner had no control. Appendix G. Jo Ann
Thomas, the employee referenced by Respondent,
never stated in any manner that Petitioner ever
referred to her as fat ass. Petitioner deserves fair
treatment under the laws of the United States as
would any citizen. The Board has held that to
establish a charge of falsification, the agency must
prove, by preponderant evidence, that the
appellant: (1} supplied wrong information, (2)
knowingly did so with the intention of defrauding,
deceiving. or misleading the agency. Heebe v.
Department of Justice, 288 F. 3d 1288, 1305 (2002),
citing Naekel v. Department of Transportation, 782
F.2d 975, * 7-78 (1986). Falsification and fraud
cases ofte., turn on proof of the element of intent.
}7
However, a finding that an appellant has provided
incorrect information cannot control the question
of intent for purposes of adjudicating a falsification
charge. Mendez v. Department of Treasury, 88
MSPR 596 (2001). Whether intent has been proven
must be resolved by the totality of the
circumstances. Blake v. Department of Justice, 81
MSPR 394 (1999). The Board must consider the
appellant's plausible explanation as an element of
the totality of the circumstances. Nelson v. U.S.
Postal Service, 79 MSPR 314 (1998). Failure to
provide Petitioner with specifics in which to
prepare a response, including to determine
whether he was at work and at the location of the
alleged incident are part of the plausible
explanation. Only the charges and specifications
set out in the agency's proposal notice may be
used to justify punishment because due process
requires that an employee be given notice of the
charges against him in sufficient detail to allow the
employee to make an informed reply. La Chance
v. Merit Systems Protection Board, 147 F.3d 1367,
1371 (1998): Mcintire v. Federal Emergency
Management Agency, 55 MSPR 578, 583 n.4 (1992).
Nor may the Board substitute what it considers to
be a better basis for removal than what was
identified by the agency. Shaw v. Department of
the Air Force, 80 MSPR 98, 106-07 (1998). Rather, the
Board is required to adjudicate an appedi solely
on the grounds invoked by the agency and may
not substitute what if considers fo be a more
appropriate charge. Riley v. Department of the
Armiy, 53 MSPR 683, 688 (1992). Appendix M. See
18
also Goitlieb v. Veterans Administration, 39 MSPR
606, 609 (1989). The Appeal Cour overlooked that
the failure of the Agency to give the Petitioner
adequately detailed nofice prior to the hearing of
the alleged misconduct prejudices his ability to
mount a meaningful defense, denies him due
process and violates Respondents own procedural
guidelines. The Board and the Appeal Court
acknowledges that the Agency could not provide
Petitioner with needed specifics such as dates,
places, and times. Speaking of the charges that
included the specification of derogatory
comments on employees’ weight, the Appeal
Count states:
It was inherent in the nature of the charges
in those specifications, however, that great
specificity was not possible. Three of the four
specifications alleged a pattern of conduct
overtime, rather thana_ particular incident. And
the individual instances of inappropriate
conduct such as angry remorks, insulting
words, were not the types to which witnesses
would ordinarily be expected to recail the precise
date and surrounding circumstances. See
Appendix A. The angry remorks and insulting
words were | infact made by Clark. J.
Nguyen, and Bachemin. See Appendix K.
Petitioner disagrees that a pattern exists. For a
pattern to exist, some specific incidents on specific
dates and times would be needed to support such
a finding. Teamsters v. United States, 431 U.S. 324
19
(1977). The agency, as the charging party, bear
the burden of showing, by a preponderance of
the evidence, that a pattern is the Petitioner's
regular and standard operating procedures.
Teamsters v. United States, 431 U.S. 324 (1997);
EECC v. Ford Motor Co., 645 F.2d 183 (1981):
Presseisen v. Swarthmore College, 442 F. Supp. 593
(1977). A time frame must be provided. The
Petitioner cannot knowingly supply wrong
information with the intent of deceiving without
specifics of dates and times of the alleged
incidents. If a pattern existed then that is more
reason why specifics should be available to be
provided to Petitioner. He did not make false
statements during an official investigation.
The allegation of a pattern of conduct over time
(charge) was not provided to Petitioner until the
March 7, 2008, decision of the Appeal Court.
Therefore, required notice was not provided.
Without the requested specifics such as dates,
times, places, of incidents, Petitioner cannot
determine whether he was at work or present at
the place of the alleged incidents. The law
requires that he be provided sufficient specifics to
provide a meaningful opportunity to be heard and
to exercise his due process rights. See Barresi v. U.S.
Postal Service, 65 MSPR 656 (1994), Goldberg v.
Kelly, 397 U.S. 254, 267, 268 (1970), Ragolla v. U.S.
Postal Service 983 F.2d 1086 (1992}, and Mason v.
Department of Navy, supra. Appendix I. The
allegation of a “pattern” cannot be used to deny
an individual of his due process rights. Petitioner
20
was not provided the number of alleged unlawful
acts, the alleged time period over which the
alleged acts occured, requirements of a pattern.
Indeed the deciding official stated that he did not
know when the alleged acts occurred; that they
could have occured any time with in the last five
years of more. Ortego, the former Director (from
August 1997 to January 2003) stated that Petitioner
did not engage in such conduct and he never
received reports of such on Petitioner. Appendix F.
In Jacques E. Lamour and Scott Roseberg v.
Department of Justice, 2007 MSPR 185, 2007, the
Board pointed out that an adverse action proposal
letter needs to be sufficiently detailed to provide
an employee proper notice to the charges against
him. If an agency fails to do this, it denies the
employee a meaningful opportunity to be heard.
In that case, the Agency charged the Appellants
with assault against an inmate but offered no other
details such as when or where it allegedly
occurred. In addition to the statutory requirements
set out in subchapter 11 of chapter 75, sufficient
notice of the basis for an agency's proposed
action against a tenured employee also implicates
due process requirements guaranteed by the Sth
Amendment to the U.S. Constitution. ("No person
shall be deprived of life, liberty, or property, without
due process of law."} See La Chance v. Erickson,
522 U.S. 262, 266 (1998) See also Goldberg v. Kelly,
397 U.S. 254, 267-68 (1970). In Cheney v.
Deparment of Justice, 479 F.3d 1343, 1353 (2007),
the court found that the agency's notice to
Cheney that he had "inappropriately queried or
2)
caused to be queried Law Enforcement
Databases" was akin to informing Mr. Cheney that
his security clearance had been suspended
because he had robbed a bank, with out telling
him where the bank was and when he had
robbed it. It is appropriate to distinguish between a
proposal to terminate employment permanently,
in which case the requirements of due process
may be more comprehensive, and a proposal to
suspend an employee temporarily, in which case
the requirements of due process are generally less
demanding. Gilbert v. Homar, 520 U.S. 924, 930
(1997). Petitioner should be accorded the more
comprehensive requirements of due process
considering that he was an employee with over 36
years of Federal Service, a draftee of the U.S. Army
for Vietnam Wartime service, an unblemished
record, with his performance at the highest rating
level and that he was facing permanent removal.
When the Appeal Court states, “alleged a pattern
of conduct over time," for the first time, the
questions that the jaw indicates Petitioner need
answers for to prepare a proper defense is what
conduct over what period of time with some
specific incidents on specific dates and times.
Teamsters v. United States, 431 U.S. 324 (1997),
Hazelwood School District v. United States 433 U.S.
299 (1977). The Agency, as the charging party,
bears the burden of showing, by a preponderance
of the evidence, that a pattern is the Petitioner's
regular and standard operating procedure.
Teamsters v. United States, 431 U.S. 324 (1977):
EEOC v. Ford Motor Co., 645 F.2d 183 (1981):
22
Presseinsen v. Swarthmore College, 442 F. Supp.
593 (1977). The burden of a pattern has not been
met. The Appeal Court overlooked the fact that
Petitioner provided evidence that the burden was
not met. Ornego, the Director of the Agency and
Petitioner's Supervisor or Manager from October
1997 to January 2003, stated that Petitioner always
conducted himself in a professional manner and
treated him and others with dignity and respect.
He stated that Petitioner did not use vulgar
language or tell inappropriate jokes in his presence
and never did anyone oftribute such behavior to
Petitioner. Appendix F. Patricia Duvernay who
worked with and for Petitioner since 1989, and
whose office was located next to Petitioner, stated,
"Petitioner carmied himself in a professional manner
and did not fell inappropriate jokes about religion
or people's weight.” Appendix K. Diane Barnes, a
retired employee who had worked for Petitioner
since about 1991, and whose office was next to
Petitioner, stated that she had never heard him use
vulgar language or speak inappropriate
comments or jokes and that she never heard him
call anyone fat ass, bastard, or mother fucker.
Hanh Nguyen.an employee who worked in a
cubicle about 10 feet in front of Petitioner's office.
never heard Petitioner use vulgar or profane
language, and never heard hir.: Use the terms
bastard or mother fucker. These overlooked facts
supports the finding that a preponderance of
evidence does not exist fo suppor a pattern. The
Agency did not contest the veracity of their
statements. The Appeal Court overlooked facts
23
and law in regards to the allegation on whether
Petitioner's catching J. Nguyen's arm was
inappropriate conduct. J. Nguyen stated that
Clark, LeBlanc, and Thomas witnessed the incident
of Petitioner catching her arm. LeBlanc and
Thomas testified that they did not witness the
occurrence. The Appeal Court overlooked the fact
that Petitioner was passing the area of
Kushindanda's office door where Kushindana and J.
Nguyen were standing. He was on his way to the
men's room. J. Nguyen, acting in a playful manner,
swung at Petitioner and he caught her arm. He did
not squeeze her arm but held it so that she could
not swing at him again. J. Nguyen did kick
Petitioner with her foot. These all took place in one
continuous motion and transaction. Petitioner
continued on his path to the men's room. Petitioner
did not perceive J. Nguyen's actions to be in anger
but rather a playful act. J. Nguyen has motioned
at Petitioner with her fist many times, but none that
he perceived in anger. The Appeal Court
overlooked the fact that J. Nguyen did not report
this until many months had passed and she
learned of the impact by the RIF. Petitioner should
not be removed for a playful, "petty" act initiated
by J. Nguyen. J. Nguyen clearly testified that the
act was “Petty.” The Appeal Court states on page 9
of its decision that (Appendix A):
"We find, however, that it was reasonable for the
Board to infer that when Mr. Lewis asked his
subordinate employees to perform personal work
for him, the request was equivalent to an order
24
based on the relationship between Mr. Lewis and
the employees."
This finding cannot be reasonable when it is untrue.
The Court of Appeals and the MSPB abused their
discretion, violated Petitioner's due process rights,
and deprived him of Equal Protection of the Law
by substituting new charges for Respondent after
the hearing. The Appeal and Board is required to
adjudicate an appeal solely on the grounds
invoked by the agency and may not substitute
what it considers to be a more appropriate
charge. Riley v. Department of the Army, 53 MSPR
683, 688 (1992); Gottlieb v. Veterans Administration,
39 MSPR 606, 609 (1989). Appendix M. Petitioner
was specifically charged with “directing”
subordinate employees to perform personal work.
Not one employee testified or provided a
statement that the employee was directed by
Petitioner to perform work. The relationship of
Petitioner with the employees is set forth in their
statements as follows:
Hanh Nguyen (July 11, 2006 Affidavit)
“Donald R. Lewis, Chief of EEOWSS, was my
supervisor during my employment in EEOWSS. My
workstation was located in a cubicle about ten
feet from the door of Mr. Lewis’ office. Mr. Lewis
was very supportive of me and the other students
in EEOWSS in our efforts to work and go to college.
He always worked with me in arranging my work
schedule and class exam schedule so that | could
25
accomplish both objectives. | enjoyed working for
Mr. Lewis and found him to have a sense of humor
that made the work environment a comfortable
place to work. Mr. Lewis has never directed or
forced me to perform personal work for him. | have
never felt intimidated by Mr. Lewis. Anything that |
did for Mr. Lewis was done during my break time.
Thanh-Thuy Nguyen (Affidavit July 5, 2006) "Donald
R. Lewis, Chief, Equal Employment Opportunity
and Workforce Services Staff, has never directed or
forced me to type or perform personal work for
him." | never performed any typing for Mr. Lewis
against my will. On some occasions, | actually
asked Mr. Lewis if he had any typing that | could
perform for him. | never felt that | had to type
anything for Mr. Lewis. Some of the typing was
done on what could be considered my break
time. Almost all of the typing was short in length.
Further, it was not frequent that | typed something
personal for Mr. Lewis. As stated in my affidavit on
December 24, 2005, Mr. Lewis was an enjoyable
manager to work with. | have been asked if | have
looked anyone in the eye and said that! hate Mr.
Lewis. | do not hafe Mr. Lewis and | have never told
anyone that | hate Mr. Lewis. Mr. Lewis was very
supportive of me as a student so why could | hate
hime
Thuy Thu Nguyen testified during the hearing
(December 12, 2006) that she gave appellant a
card in which she wrote, "Mr. Lewis, it was nice of
you! | hate to admit this, but you have been so
26
nice and kind in mentoring me throughout the fime
in reaching my professional goals.” She testified
that Petitioner asked her to type something for him.
The law clearly provides that it is the specific
charge that is controlling. The Respondent
specifically charged Petitioner with "directing." The
charge should be decided based on the specific
charge and the preponderance of the evidence.
See: Nazelrod v. Department of Justice, 54 MSRP
461 (1992): King v. Nazelrod, 43 F.3d 663 (1994); Nor
may the tribunal substitute what it considers to be
a better basis for removal than what was identified
by the agency. Shaw v. Department of Air Force,
80 MSPR 98, 106-07 (1998); Riley, supra; Gottlieb
supra.
In regards to credibility, the Appeal Court should
not uphold the MSPB if there is a lack of sufficient
or appropriate findings to sustain the result
reached by the Board. In Goldstein v. Department
of Treasury, 51 F.3d 1570, 1576 (1995) the cour
stated:
Per its own precedent in Hillen v.
Department of Army, 35 MSPR 453 (1987), the
Board must ensure that the AJ has made
appropriate credibility judgments detailing
where and why she credited certain testimony
over other testimony and resolving orreconciling
all material conflicts in the record. Where the AJ
has not, the Board must fill in the gaps,
remanding for further evidentiary hearing, if
27
necessary. Although we review credibility
and other factual determinations under an
extremely deferential standard, where, as here,
the Board and/or the AJ have failed to make
necessary findings, we will not "rubber stamp" the
decision because of a deferential standard of
review.
The Petitioner asserts that the Board's credibility
determinations were abbreviated, based on
improper considerations, unsupported by the
record, and failed to meet the requirements in
Hillen v. Department of Army, 35 MSPR 453 (1987),
Garza v. Department of Army, 57 MSPR 214 (1993).
The Appeal Court does not owe deference to the
Board's AJ's credibility determination where the
findings are incomplete, inconsistent with the
weight of evidence, and do not reflect the record
as a whole. The Board's AJ makes the conclusory
credibility finding on page 10 of the Board's
decision stating, "Furthermore, | found the
appellant's general demeanor while testifying, i.e.,
his carriage, behavior, manner, and appearance
demonstrated a lack of candor.” The AJ did not
describe Petitioner's carriage behavior, manner,
and appearance. See Appendix C. The AJ did not
describe Petitioner's carriage, behavior, manner,
and appearance. The Board's AJ also states that
the Petitioner's behavior reflects a significant lack
of honesty and integrity because he intended to
submit a research paper that the Petitioner
conceded was written by one of his students for his
son's admission to a Ph.D. program. The AJ's finding
28
is arbitrary, capricious, abuse of discretion, and not
supported by substantial evidence. Petitioner
testified that the student wrote some of the paper
that he wrote some of the paper. Petitioner told
the truth. In Soecial Counsel v. Eubanks, 76 MSPR
405, 416 (1997), the Board stated that it is error for a
fact finder to rely on a witness's demeanor to find
that her testimony is untrue without explaining
anything about her manner and appearance that
warranted that conclusion. Petitioner's camiage,
behavior, manner, and appearance should have
been described. The AJ, Board, and Appeal Court
went on to use the erroneous generai credibility
finding to make other credibility findings against
Petitioner and to sustain each charge. Further, it
should be noted that the AJ's description for
Petitioner's demeanor comes directly out of Peter
Broida's "A Guide to Merit Systems Protection Board
Law and Practice” page 865, which states,
"Demecior constitutes the carriage, behavior,
manner, and appearance of a witness Guring
testimony." The elements are the same and in the
same order. The Board should not provide
deference generally reserved for a judge's
credibility finding if those findings suffer from
paucity of explanation. See Garza v. Department
of Army. 57 MSPR 214 (1993).
The Appeal Cut overlooked the law and facts on
the impact of the conduct of thos? who acted in
bad faith and with malice and engaged in
collusion among themselves and with the
Investigator to harm and destroy Petitioner. The
29?
Appeal Court stated on page 3 of it’s decision that
it would address these issues under Seavello v.
Deparment of Navy, 4 MSPB 239, 241(1980) but it
did not. Bachemin spoke with the Investigator and
the other employees acting with malice and in
collusion against Petitioner. Appendix N. The
Investigator went on to make findings, conclusions,
opinions, and recommendations against Petitioner,
including the recommendation of his removal. The
fabrications by Bachemin against Petitioner
because her promotion position description was in
issue and her influencing others against Petitioner
was not cured by tive AJ stating that the Board was
not using her statement. The vine had already
been poisoned. The Misconduct Investigator
Coordinator, became upset with Petitioner when
he would not sign the fraudulent position
description for Bachemin. She ordered the
investigation of Petitioner for a period of over 40
years, a time period exceeding his Federal
employment, and with requirements of personal
opinions, conclusions, and recommendations,
including the recommendation of Petitioner's
removal, all violations of the Agency's procedural
guidelines. Appendix E. A prohibited personnel
practice was committed against petitioner.
Kushindana threatened to cause problems for
Petitioner if J. Nguyen was impacted by the RIF
rather than M. Nguyen and on August 3, 2005,
threatened to run Petitioner off since it did not
appear he was going to leave. Appendix H. The
Bourd and Appeal Court overlooked the law in
Seavello v. Department of Navy, supra, wherein
30
charges based upon conduct that occurred two
years prior were brought to the agency's attention
in an untimely fashion by an emplc yee who knew
of the conduct all along but choose to alert the
agency to it for personal reasons. The charges
were dismissed because there were serious issues
of credibility and because the Board found the
case against the appellant “imevocably tainted by
personal animus." Appendix A and C. The 3o0ard
and Appeai Court ignored the Psychological Stress
Evaluaror (Voice Lie Detector) tests of Petitioner
taken on April 8 and 13, 2006, without explanation
or reason, that included the threats made to harm
him. Appendix H. When the Board and Appeal
Court ignored this evidence of Petitioner, they
harmed him, inciuding the denial of his nght to fully
present his position and abridged his rignts under
the U.S. Constitution. It denied Petitioner Equal
Protection under the law and the U.S. Constitution.
Petitioner pointed out to the Agency, AJ, Board,
and Appeal Court that the Agency knew that
Kushindana was not being honest when she said
Petitioner had spoken to her when he was upset
about not getting a promotion to a GS-15 that he
applied for but was not selected by the Agency
and she asked him if he had thoughts about
retiring. This never took place; he never applied for
a GS-15 at the Agency to be upset about not
being selected. The agency did not have any
records they could produce or Petitioner applying
for a GS-15. It is inherently improbable that a
person would be expressing disappointment over
not being selected for a GS-15 at an organization
3]
when he never applied for a GS-15 there. In an
effort to harm Peiitioner, Kushindana went on to
testify that only Petitioner knew about her
conducting private business on Government time
and equipment. Kushindana alleged that
Petitioner would not take appropriate
management action against a contract employee
on allegation of sexual harassment. However,
when Petitioner reassigned a counseling case affer
Kushindana belatedly told him about comments
made to her by Gary Dukes, she filed a complaint
against Petitioner. Again, as to Kashindana
performing personal work, it is inherently
improbable Petitioner knew because he worked in
a differen suite o office from Kashindana.
The Appeal Court is in error on the law and facts
on the charge of failure to take appropriate
management action. On page 6 of the decision,
the Appeal Court found (Appendix A):
Ms. Byrne's affidavit stated that she !carned
of the contract employee's conduct from
another employee who Ms. Nguyen and Ms.
Kushindana had complained. Based on Ms.
Byrne's affidavit, we find fhat the Board's
conclusion that Mr. Lewis knew of _ the contract
employee's conduct before February 17 to
be supported by substantial evidence. We
therefore affirm the Board's holding with
respect to the second charge.
Byrne's affidavit was provided to the Appeal Court
32
by Respondent, pages 142-143 of their Appendix. A
careful reading of Byrne's affidavit will support a
finding that the findings are not supported by facts.
She has never stated that “another employee" told
her of Kushindana or that Kushindana
communicated any allegation of sexual
harassment to her. Petitioner's communication with
Byrne on the morning of February 17, 2005, that
included reporting J. Nguyen’s and Kushindana's
position on the contract empioyee rather than just
Nguyen's is the
only evidence of Kushindan's position being
conveyed to Byrne. See also Appendix K. The
Appeal Court stated something as fact that is not
in the record. Petitioner asked the Appeal Court to
review Byrne's affidavit in the face of the factual
error but they did not. Prior to February 17, 2005,
Petitioner had asked Nguyen if there were any
issues with the contract employee and she told
him no. Nguyen come to Petitioner once and
asked Petitioner why he did not get his haircut like
the contract employee. At that time Petitioner did
not know the identity of the contract employee.
There was no issue of sexual harassmeni with the
contract employee presented to Petitioner until the
morning of September 17, 2005. When Byrne called
on February 17, 2005, she clearly stated that she
was returning Petitioner's call on Nguyen,
Kushindana, and the contract employee. See
Appendix K.
The employment history of the employee and the
investigator's conduct should be considered in an
33
analysis of the penalty in this case. The Agency
Misconduct Investigator Coordinator, ordered an
investigation of Petitioner for a period of over 40
years without boundaries as to issues and USDA
procedural violations. Given the investigators
conduc}, including that of telling Petitioner upon
the opening of his interview that he should be
gone, and the gross procedural violations it is
Petitioner's position that the investigator was hired
to build a case for his removal. She was upset with
Petitioner for not signing a fraudulent position
description for Bachemin, a prohibited personnel
practice. Bachemin, along with other employees
who were upset with Petitioner over J. Nguyen
being impacted by the RIF rather than M. Nguyen,
orchestrated and encouraged the employees
against Petitioner. Cook ordered the investigation
in total violation of the procedures set forth in the
USDA procedure guidelines for misconduct
investigations, with the procedure guidelines
stating that failure to follow them could improperly
influence the decision-maker. Appendix E.
Petitioner, at the time of the investigation, had over
36 years of Federal service with an unblemished
disciplinary record, a near perfect performance
history record at the highest level with his last rating
being at the highest level, and having served 2
years in the U.S. Army by way of the draft during
the Vietnam War with an Honorable Discharge
and Letter of Appreciation from General William
Westmoreland for his war time service. He won
national awards for himself and the Agency. No
other EEO Manager camied the office and
34
programs to the level of achievement of Petitioner.
See Appendix F. No individual or tribunal has set
forth any analysis of their rational on finding
Petitioner not fit for employment after over 36 years
of basically perfect employment record as fo
performance and conduct. When it became clear
to Petitioner that Respondent and the particular
group of employees were determine to destroy
him, Petitioner sought and received favorable
consideration for employment by 2 other Federal
agencies. One agency offered Petitioner a
position and he accepted. However, one day
after the agency contacted Respondent, the offer
was withdrawn. When the other agency
contacted Respondent for a reference on
Petitioner, the agency stopped their process of
consideration. Respondent's desire to prevent
Petitioner from going on else where with his life and
to hold him within their grip so that they could not
just remove him but rather destroy him has fo be
considered when considering the reasonableness
of the penalty and motive. Respondent has never
set forth any position on why they harmed
Petitioner in his efforts to leave and go on with his
life. When the deciding official was asked why
Petitioner was investigated for over 40 years he
answered that he did not know.
Upon the Investigator, initial contact with Petitioner,
she told him thai, "you ought to be out of here,”
and that he should be retired before having his
position on any issue. Petitioner's rating was at fhe
Outstanding level, the highest rating possible. The
Investigator presented her (ROI) preliminary
findings to the deciding official on January 3, 2006.
She did not have Petitioner's affidavit until after
January 19, 2006.
In reviewing the penalty determination, the
Appeal Court overlooked points of law and facts.
In doing so, the Appeal Court, MSPB, and
Respondent violated Petitioner's Rights of Equal
Protection Under the Law, Due Process Rights, and
Fifth Amendment of the U.S. Constitution by taking
away his protected property interest in his
employment by the Respondent charging him with
unintentional/negligence and the MSPB and
Appeal Court sustaining the Respondent's findings
on the same basis and Respondent removing
Petitioner by applying the element of intent for the
same charges and the Appeal Court and MSPB
abusing their discretion by sustaining the Penalty of
removal by Respondent on the basis of intent. See
Edmound C. Broussard v. Department of Navy, 27
MSPR 382 (1985), (Appendix J) wherein the Agency
charged the Appellant with negligence but
improperly removed him based on the element of
intent. The Board and Appeal Court acknowledge
thaf Respondent never charged or proved the
element of intent against Petitioner yet they
approved his removal on that basis.
An employee with no prior disciplinary record,
gocd prior performance and job dedication
possesses good potential for rehabilitation.
Petitioner presented these and more. His
36
performance was almost always at the highest
level and his dedication to the job is supported by
the many awards won for the Agency, over 25
personal awards, the developing of the office to
the highest level of achievement ever, and over 36
years of Federal Service with no disciplinary record.
See Appendix F. Petitioner's personal development
was gained against the odds. He was restricted by
state action to attending a condemned school. He
never had a text book fhat had not expired unitil
he graduated from high school and made
personal purchases. All of his education was
gained while working.
The Board and the Appeal Cour have refused to
adaress the issue of prohibited personnel practice
of Petitioner refusal to sign the fraudulent position
description on Bachemin. Kushindana threatened
Petitioner including to run him off. See Appendix H.
Bachemin went fo the deciding official and sought
a promotion and Petitioner's removal. She got
both. Petitioner was administered 2 psychological
stress evaluator (voice lie detector) tests that
included the threats with the result being that he
was being truthful. Appendix H. The AJ, Board, and
Appeal Court ignored the test results and never
addressed them. When the Appeal Coun ignored
the tests results it harmed Petitioner, including the
denial of his rights to fully present his position and
abridged his rights under the U.S. Constitution. The
deciding official relied upon information in charges
that he stated he did not know when the alleged
misconduct suppose to have occured, that it
37
could have occurred five years ago or more.
Respondent violated its own procedural guidelines
on investigations which states that “the report
should tell a story of what happened, who was
involved, when and where it happened and why it
happened.” Yet he was willing to take away
everything that Petitioner had worked for as to
employment. The Board and appeal Court did not
properly review the agency's penalty selection to
assure that the Agency conscientiously and
properly considered the relevant factors in
choosing the penalty and striking a reasonable
and responsible balance within tolerable limits of
reasonableness. See also the table of penalties in
Appendix L. For arbitrary, invidious, and capricious
reasons the Appeal Court engaged in judicial
misconduct that was wrong and harmed Petitioner
as a citizen seeking a just and fair review of the
issues in his case. The Appeal Court wrongfully
considered Petitioner's eligibility for retirement. Due
to word limitation, Petitioner respectfully request
thai the Supreme Court read Appendix O for more
information on this judicial misconduct issue.
Petitioner never received a response or answer.
Conclusion
This petition for a writ of certiorari should be
granted. The Appeal Court and Board have
decided important questions of federal law in
away that conflicts with relevant decisions of this
Court and failed to consider important questions of
federal law such as prohibited personal practices
38
and reprisal for failure to engage in such. The
Appeal Court has so far departed from the
accepted and usual course of judicial
proceedings as to call for an exercise of this
Count’s supervisory power, to include that of
judicial misconduct and the consideration of
Petitioners eligibility for retirement in reaching its
decision when such was not in issue.
spectfwily Supomifled,
Donald R. Lewis
Sele ee
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.