Aaron Darnell Grant v. Department of the Treasury ( 2015 )


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  •                           UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    AARON DARNELL GRANT,                            DOCKET NUMBER
    Appellant,                          DC-0752-14-0237-I-1
    v.
    DEPARTMENT OF THE TREASURY,                     DATE: May 27, 2015
    Agency.
    THIS FINAL ORDER IS NO NPRECEDENTIAL 1
    Aaron Darnell Grant, Washington, D.C., pro se.
    Byron D. Smalley, Esquire, and Robert M. Mirkov, Esquire, Washington,
    D.C., for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    FINAL ORDER
    ¶1        The appellant has filed a petition for review of the initial decision, which
    sustained the appellant’s removal. Generally, we grant petitions such as this one
    only when: the initial decision contains erroneous findings of material fact; the
    initial decision is based on an erroneous interpretation of statute or regulation or
    1
    A nonprecedential order is one that the Board has determined does not add
    sign ificantly 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 Parties may cite nonprecedential orders,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).
    2
    the erroneous application of the law to the facts of the case; the 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. See 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, and based on the following points and authorities, we conclude that the
    petitioner has not established any basis under section 1201.115 for granting the
    petition for review. We AFFIRM the initial decision, as MODIFIED by this Final
    Order.   We MODIFY the initial decision to clarify the administrative judge’s
    analysis that the appellant failed to prove his due process claims, including his
    argument that, in imposing the removal penalty, the deciding official considered
    an aggravating Douglas factor—that the appellant’s lack of candor was
    intentional—which was not specifically alleged in the proposal notice. The initial
    decision, as modified by the Final Order, is the Board’s final decision in this
    matter. 5 C.F.R. § 1201.113(b).
    BACKGROUND
    ¶2        The appellant was a Criminal Investigator with the Internal Revenue
    Service. By notice dated December 7, 2012, the agency proposed the appellant’s
    removal on three charges:    (1) being less than candid in a matter of official
    business (two specifications); (2) failing to follow established procedures (four
    specifications); and (3) failing to cooperate in an official investigation (one
    specification). Initial Appeal File (IAF), Tab 12 at 52-55. After conducting a
    hearing, the administrative judge found that the agency proved all of its charges
    and specifications by preponderant evidence. IAF, Tab 80, Initial Decision (ID)
    at 14-28. The administrative judge then considered the appellant’s affirmative
    defenses, finding that the appellant failed to establish harmful procedural error,
    3
    denial of due process, retaliation for protected equal employment opportunity
    (EEO) and/or MSPB activity, or discrimination on the bases of race and/or
    gender. ID at 28-45. Finally, the administrative judge found nexus between the
    appellant’s misconduct and the efficiency of the service and that the removal
    penalty was within the bounds of reasonableness. ID at 45-51.
    ¶3         In a timely filed petition for review, the appellant contests virtually all of
    the administrative judge’s findings. Petition for Review (PFR) File, Tab 1. 2 The
    agency has filed a timely response, to which the appellant has replied. PFR File,
    Tabs 13, 19. 3
    ANALYSIS
    ¶4         The Board will grant a petition for review when it is shown that the initial
    decision contains erroneous findings of material fact. 5 C.F.R. § 1201.115(a). To
    be material, an alleged factual error must be of sufficient weight to warrant an
    outcome different from that of the initial decision, and the petitioner must explain
    why the challenged factual determination is incorrect and identify specific
    evidence in the record that demonstrates the error. 
    Id. The Board
    will not disturb
    an administrative judge’s findings when he considered the evidence as a whole,
    drew appropriate inferences, and made reasoned conclusions of credibility. See
    Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997); Broughton v.
    Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987).                  The
    Board must give deference to an administrative judge’s credibility determinations
    2
    Among other matters, the appellant challenges the administrative judge’s
    determinations as to retaliation for protected EEO activity and/or for filing an MSPB
    appeal, discrimination on the bases of race and/or gender, and the reasonableness of the
    penalty. PFR File, Tab 1 at 41-50. We affirm the findings on these issues in the initial
    decision for the reasons stated therein.
    3
    Following the close of the record, the appellant filed a number of motions for leave to
    file new evidence or to brief additional issues. See PFR File, Tabs 7, 14, 21, 25, 27, 29,
    34, and 36. Because the appellant has not established that any of this evidence or
    argument is new and material, or that good cause exists for any his motions, they are all
    denied.
    4
    when they are based, explicitly or implicitly, on the observation of the demeanor
    of witnesses testifying at a hearing and can overturn such determinations only
    when it has “sufficiently sound” reasons for doing so. Haebe v. Department of
    Justice, 
    288 F.3d 1288
    , 1301 (Fed. Cir. 2002).
    ¶5        As discussed below, our review shows that the administrative judge
    complied with the requirements of Crosby and Broughton in making detailed
    findings of fact and credibility determinations.    In addition, the administrative
    judge explicitly relied on the demeanor of witnesses in assessing credibility. See
    ID at 15, 18 & n.11.      We find no sound basis for overturning any of the
    administrative judge’s credibility determinations and findings of fact.
    The administrative judge correctly found that the agency proved all of its charges
    and specifications.
    The administrative judge correctly found that the agency proved both
    specifications of its charge that the appellant was less than candid in a matter
    of official business.
    ¶6        Lack of candor and falsification are different, although related, forms of
    misconduct, and the latter is not a necessary element of the former; thus, lack of
    candor is a more flexible charge that need not require proof of intent to deceive.
    Ludlum v. Department of Justice, 
    278 F.3d 1280
    , 1283-84 (Fed. Cir. 2002). But,
    intent aside, lack of candor still “necessarily involves a degree of deception.” 
    Id. at 1284.
    It may involve lying under oath or failing to reply fully and truthfully,
    such as failing to disclose something that, in the circumstances, should have been
    disclosed in order to make the given statement accurate and complete. 
    Id. ¶7 Both
    of the specifications under this charge relate to the appellant’s
    responses under oath during questioning by agency investigators on April 30,
    2010. The first specification related to the appellant’s negative response on that
    date to the question of whether he had been involved in a car accident in his
    government-owned vehicle (GOV). IAF, Tab 12 at 52, 218. The agency alleged
    that this response was less than candid in that, on May 3, 2010, he told
    investigators under oath that he had been involved in an accident in his GOV. 
    Id. 5 at
    52, 223. The second specification related to the appellant’s denial while under
    oath on April 30 that he had lost his credentials in connection with the car
    accident involved in the first specification. The agency alleged that this response
    was less than candid because on May 3, he stated in his affidavit and under oath
    to agency investigators that he had briefly lost his credentials while addressing
    the car accident. IAF, Tab 12 at 52, 218, 223. After considering the evidence,
    the administrative judge concluded that the agency proved both specifications by
    preponderant evidence. ID at 14-20.
    ¶8           On review, the appellant asserts that the agency failed to prove either
    specification. Before addressing the specifics of his contentions in this regard,
    we note that the appellant effectively conceded on the face of his May 3 affidavit
    that he had been less than candid on April 30: “I would like to recant some of my
    answers that I provided to TIGTA 4 Special Agents . . . .” IAF, Tab 12 at 227.
    The appellant would have had no need on May 3 to “recant” answers provided on
    April 30 if he had been candid on April 30.
    ¶9           Regarding the first specification, the appellant alleges that the agency failed
    to establish that he was involved in a car accident in his GOV, repeatedly
    describing what happened as a “near miss” rather than an accident. PFR File, Tab
    1 at 23-28.      This contention contradicts the affidavit the appellant provided
    agency investigators on May 3: “I got into a fender-bender on the on-ramp from
    Branch Avenue to Suitland Parkway going towards DC . . . . I was texting on my
    phone and lost concentration on the road and rear-ended an individual.” IAF, Tab
    12 at 228. That statement is unambiguous; the appellant admitted that his vehicle
    “rear-ended” the vehicle in front of him, meaning that his vehicle made contact
    with the other vehicle. Regardless of whether there was observable damage to
    either vehicle in this collision, the appellant admitted that he was in an accident,
    4
    TIGTA is an abbreviation for the Treasury Inspector General for Tax Admin istration.
    6
    and his later denial of being in an accident on April 30 lacked candor, as do his
    assertions about a “near miss” in his petition for review.
    ¶10         The appellant asserts on review that the agency failed to establish lack of
    candor when he denied on April 30 that he ever lost his credentials because the
    agency failed to establish that he ever lost his credentials. PFR File, Tab 1 at
    31-32. In his May 3 affidavit, the appellant admitted that he called a coworker
    from his cell phone and told her that he had lost his credentials. IAF, Tab 12 at
    228. The coworker corroborated that the appellant called her and asked her to
    look for his credentials.     
    Id. at 211.
      A disinterested third party—a police
    officer—who was with the coworker at the time of the call overheard her tell the
    appellant that she was not going to help him look for his credentials and that he
    needed to report that he had been in an accident.            
    Id. at 221.
      The agency
    established that the appellant was less than candid when he denied on April 30
    that he had lost his credentials.
    The administrative judge correctly found that the agency proved all of its
    specifications that the appellant failed to follow established procedures.
    ¶11         The agency charged that the appellant failed to follow established
    procedures when he: (1) failed to report that he was involved in a car accident
    while driving his GOV; (2) texted while driving a GOV; (3) drove his GOV and
    was wearing his Service-issued firearm while under the influence of alcohol on
    January 24, 2009; and (4) drove his GOV after consuming alcohol on March 31,
    2010. IAF, Tab 12 at 52-53. On review, the appellant admits that he was guilty
    of the third specification but contends that the administrative judge erred in
    finding that the agency proved the other three specifications. PFR File, Tab 1 at
    26-35.
    ¶12         The appellant claims he was not guilty of the first specification—that he
    failed to follow established procedures when he did not report his auto accident of
    January 24, 2009—based on his assertion that the agency failed to establish that
    he was involved in an automobile accident.       PFR File, Tab 1 at 32-37.       That
    7
    contention is without merit for the reasons discussed above.             There was no
    dispute that agency policy required the prompt reporting of automobile accidents.
    See IAF, Tab 12 at 97. It was also undisputed that the appellant did not promptly
    report the automobile accident in which he was involved on January 24, 2009.
    ¶13        The    appellant   claims   that     he   is    not   guilty   of    the   second
    specification--violating agency policy when he texted while driving a GOV,
    resulting in an accident—because the agency did not have a specific agency
    policy prohibiting texting while driving at the time of the incident in January
    2009. PFR File, Tab 1 at 34-36. The agency did not, however, rely on a specific
    policy prohibiting texting while driving; it relied on a policy that provided:
    “Each employee to whom a vehicle is issued or assigned is responsible for
    accident prevention and safe driving of government-owned . . . vehicles.” IAF,
    Tab 12 at 53, 96. This provision cited inattentiveness and using a cell phone as
    examples of violating the policy.       
    Id. at 96.
      In his affidavit of May 3, the
    appellant admitted that he had violated this policy:          “I got into a fender-
    bender . . . . I was texting on my phone and lost concentration on the road and
    rear-ended an individual.” 
    Id. at 228.
    ¶14        The appellant contends that the agency failed to prove the fourth
    specification—that he violated agency policy when he drove his GOV after
    consuming alcohol on March 31, 2010—because the agency failed to introduce
    objective evidence to prove that he was intoxicated under some legal standard
    when he drove home that night. PFR File, Tab 1 at 37-38. The agency policy did
    not require such proof; it prohibited agents such as the appellant from consuming
    intoxicants at any time during the workday, including mealtimes, “when the agent
    intends to return to duty that day. This includes … any time while operating a
    GOV or carrying a firearm.” IAF, Tab 12 at 114. The appellant admitted that he
    drank three or four alcoholic drinks on the evening of March 31, 2010. See IAF,
    Tab 12 at 44, 229. At the hearing, the appellant initially denied that he was still
    under the influence of alcohol when he drove his GOV home later that night.
    8
    Hearing Transcript (HT) (March 19, 2014) at 196-200. 5 He was impeached by
    evidence of his earlier deposition, wherein he stated that he was “drunk” in the
    workplace and continued to be “under the influence” when he drove his GOV
    home at midnight. Id.; ID at 25; IAF, Tab 31 at 444; HT (March 19, 2014) at
    200.
    The agency proved its charge of failing to cooperate in an official
    investigation.
    ¶15          The basis for this charge was the appellant’s failure to provide contact
    information for the individual whom he rear-ended on January 24, 2009.                On
    May 3, 2010, while under oath, the appellant told the TIGTA investigator that he
    no longer had the contact information. IAF, Tab 12 at 53. On May 14, 2010, the
    TIGTA agent telephoned the appellant to see if he had located the requested
    contact information.     The appellant informed the agent that he would allow
    TIGTA to see the information but would not allow TIGTA to keep it and then
    ended the telephone call. 
    Id. On May
    17, 2010, the appellant telephoned the
    TIGTA agent and asked how providing the requested contact information would
    help the appellant’s case, and the TIGTA agent advised him that the information
    was needed as part of the investigation. 
    Id. The appellant
    never provided TIGTA
    with the requested contact information. 
    Id. The appellant
    contends on review
    that he was not required to provide the other motorist’s contact information to the
    agency investigators because such a requirement would have violated his Fifth
    Amendment privilege against self-incrimination. PFR File, Tab 1 at 38-41.
    5
    Generally, the oral recording made by a court reporter is the official transcript of a
    hearing. See 5 C.F.R. § 1201.53(a). A written transcript will be accepted as the official
    hearing record when prepared by the court reporter. 5 C.F.R. § 1201.53(b). Here, the
    agency obtained the oral recordin g of the hearing and retained a second company to
    prepare a written transcript. PFR File, Tab 24. Although the recording prepared by the
    court reporter retained by the Board remains the official hearing record, we cite the
    written transcript prepared by the second company for convenience. We have verified
    the accuracy of the portions of the written transcript cited by listen ing to the relevant
    portions of the oral recording.
    9
    ¶16         We note that the appellant has not disputed the administrative judge’s
    findings that he possessed the requested information and failed to provide it to
    agency investigators. Accordingly, the administrative judge had a proper basis
    for finding that the agency proved the factual allegations supporting the charge.
    The only question is whether the appellant was obligated to comply with the
    agency’s request.
    ¶17         As the agency points out in its response to the appellant’s petition for
    review, PFR File, Tab 13 at 30, an employee has a Fifth Amendment privilege not
    to answer questions posed during an agency administrative investigation only if
    he reasonably believes that his statements may be used against him in a criminal
    trial. See Weston v. Department of Housing & Urban Development, 
    724 F.2d 943
    ,
    947-48 (Fed. Cir. 1983); Ashford v. Department of Justice, 6 M.S.P.R. 458, 465
    (1981). According to his own account, the appellant did not invoke his privilege
    against self-incrimination until May 24, 2010, subsequent to the dates cited in the
    agency’s charge.    IAF, Tab 12 at 44.      In addition, the appellant has cited no
    reasons to support a conclusion that he reasonably believed that he might be
    subject to criminal prosecution if he had complied with the request for the other
    motorist’s contact information.       We therefore find that the appellant was
    obligated to comply with the investigators’ request for information and his failure
    to do so constituted failing to cooperate in an official investigation.
    The appellant has failed to establish that he was denied due process of law.
    ¶18         A tenured public employee has a constitutional right to minimum due
    process of law under the Fifth Amendment, i.e., prior notice and an opportunity to
    respond. Cleveland Board of Education v. Loudermill, 
    470 U.S. 532
    , 546 (1985).
    When an agency intends to rely on aggravating factors as the basis for the
    imposition of a penalty, such factors should be included in the advance notice of
    adverse action so that the employee will have a fair opportunity to respond to
    those factors before the agency’s deciding official. Lopes v. Department of the
    Navy, 116 M.S.P.R. 470, ¶ 5 (2011); see Ward v. U.S. Postal Service, 
    634 F.3d 10
    1274, 1280 (Fed. Cir. 2011). Not every failure to list an aggravating factor in the
    proposal notice rises to the level of a due process violation; a due process
    violation occurs only when “new and material information” is considered that is
    “so substantial and so likely to cause prejudice that no employee can fairly be
    required to be subjected to a deprivation of property under such circumstances.”
    Bennett v. Department of Justice, 119 M.S.P.R. 685, ¶ 7 (2013) (quoting 
    Ward, 634 F.3d at 1279
    ).
    The agency did not violate the appellant’s due process rights by failing to
    advise him how each of the Douglas factors would be applied to the offenses.
    ¶19         On review, the appellant points out that the proposal notice did not describe
    how each of the Douglas factors 6 applied to the charged misconduct and contends
    that this failure denied him due process of law. PFR File, Tab 1 at 7-9. The
    appellant lays particular emphasis on the fact that the proposal notice did not
    specifically discuss the fourth or ninth Douglas factors, i.e., his work record and
    potential for rehabilitation. PFR File, Tab 1 at 5-7, 16. 7
    ¶20         The proposal notice did explicitly discuss the first and second Douglas
    factors, the nature and seriousness of the offense and its relation to the
    appellant’s duties, position, and responsibilities, and the appellant’s job level and
    type of employment. IAF, Tab 12 at 54. The Board often has stated that the first
    factor is the most important in assessing the reasonableness of the penalty. E.g.,
    Brough v. Department of Commerce, 119 M.S.P.R. 118, ¶ 11 (2013); Batts v.
    Department of the Interior, 102 M.S.P.R. 27, ¶ 11 (2006); Williams v.
    Government Printing Office, 7 M.S.P.R. 183, 185 (1981). In addition to the first
    two Douglas factors, the agency’s proposal and decision notices cited several
    6
    In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
    listed 12 non-exclusive factors to be considered in assessing the reasonableness of an
    agency-imposed penalty.
    7
    The appellant’s contentions regarding the fourth Douglas factor are discussed below,
    ¶¶ 24-25.
    11
    other Douglas factors as “aggravating” in nature:              (5) Effect on Future
    Performance; (6) Consistency with Other Penalties; (8) Clarity of Notice;
    (9) Potential for Rehabilitation; and (11) Adequacy of Alternative Sanctions.
    IAF, Tab 12 at 39, 5, 66-67; see Douglas, 5 M.S.P.R. at 305-06. 8
    ¶21         Although the proposal notice did not expressly discuss how each of the
    “aggravating” Douglas factors applied to the appellant’s situation, it did provide
    him a Guide to Penalty Determinations, which described in general terms how
    each of the Douglas factors is used in determining a reasonable penalty. See 
    id. at 56,
    65-68. The Guide states that factor 5—Effect on Future Performance—
    includes the effect of the offense upon the employer’s confidence in the
    employee’s ability to perform assigned duties and loss of trust in the employee’s
    ability to perform assigned duties in the future.          
    Id. at 66.
        Such loss of
    confidence was specifically raised in the proposal notice (“Your failure to meet
    these standards seriously impairs the Service’s and public’s ability to rely on your
    veracity, ability to use sound judgment and follow established procedures and
    directives”).     
    Id. at 54.
      For factor 9—Potential for Rehabilitation—the Guide
    states that an employee who admits misconduct and shows remorse displays
    potential for rehabilitation, while an employee who rationalizes his wrongdoing,
    fails to take responsibility, or does not show an understanding of why his
    behavior was wrong is not a good candidate for rehabilitation. 
    Id. at 67.
    It also
    states that lying during an investigation may be viewed as a lack of potential for
    rehabilitation.     
    Id. The application
    of this Douglas factor to the charged
    misconduct was self-evident. Although the proposal notice did not specifically
    discuss Douglas factor 8, Clarity of Notice, the appellant was notified that the
    agency considered this an aggravating factor, and he made no claim that he was
    8
    The agency’s listing of factors omits Douglas factor 7, which is the consistency of the
    penalty with any applicable agency table of penalties. See IAF, Tab 12 at 66; see also
    Douglas, 5 M.S.P.R. at 305. Accordingly, the factors numbered as 8-12 in Douglas are
    listed in the agency’s document as factors 7-11. IAF, Tab 12 at 66-67. We use the
    agency’s numbering of factors.
    12
    unaware of the need to report auto accidents, to refrain from driving his GOV
    after consuming alcohol, or to respond fully and truthfully during an agency
    investigation.
    ¶22         In sum, although the agency’s proposing official could have discussed with
    more specificity why he considered Douglas factors 5, 6, 9 8, 9, and 11 to be
    factors aggravating the penalty to be imposed, and the deciding official could
    have explained with more specificity why he considered them to be aggravating
    factors, the appellant was on fair notice of those factors and had a reasonable
    opportunity to respond to them. That he chose to ignore them in his response to
    the proposed removal, see IAF, Tab 12 at 42-45, is his own responsibility. We
    conclude that the agency’s failure to discuss these aggravating factors with more
    specificity in its proposal notice was not “so substantial and so likely to cause
    prejudice that no employee can fairly be required to be subjected to a deprivation
    of property under such circumstances.” 
    Ward, 634 F.3d at 1279
    .
    The agency did not violate the appellant’s due process rights by failing to
    give him notice of workplace performance as an aggravating factor.
    ¶23         The agency’s December 7, 2012 proposal notice did not state that the
    agency considered Douglas factor 4—Work Record—as an aggravating factor.
    See IAF, Tab 12 at 54. On December 21, the proposing official provided the
    appellant additional materials that the agency stated would be considered and
    relied on in connection with the proposed removal. 
    Id. at 58.
    These additional
    materials concerned the appellant’s alleged failure to comply with his
    supervisor’s directives to input his time in the agency’s electronic system. 
    Id. at 9
           Although listed in both the proposal and decision notices as an aggravating factor, the
    consistency of the penalty with that imposed on other employees for similar offenses
    was not specifically discussed in either. See IAF, Tab 12 at 39, 54. The deciding
    official testified that he considered th is an aggravating factor in that no other employees
    had been disciplined for all of the misconduct as had the appellant. HT (March 18,
    2014) at 251-52. We see no basis for finding that the deciding official’s lim ited
    consideration of this factor invo lved “new and material information” that could
    constitute a due process violation.
    13
    59-61. At the hearing, the deciding official testified that this evidence “could
    apply” under Douglas factor 4 in that it contained some information about the
    appellant’s ability to get along with coworkers and some unprofessional conduct
    with coworkers but “that didn’t really aggravate the penalty in my opinion.” HT
    (March 18, 2014) at 249-50. The administrative judge found that the deciding
    official properly considered this information under Douglas factor 4.         ID at
    50-51.   The appellant contends that he was denied due process because the
    deciding official considered a new aggravating factor not listed in the proposal
    notice. PFR File, Tab 1 at 5-7.
    ¶24        This situation presents the converse of the Douglas factors described above,
    in that the agency listed those factors in the proposal notice but did not describe
    how they applied with particularity.     By contrast, in this allegation of a due
    process violation, the agency supplied the appellant with the additional material it
    would be considering but did not identify the Douglas factor(s) to which the new
    material related.   This allegation is also unlike the due process allegations
    described above in that the appellant did address the reasons why he had not
    inputted his time into the agency’s electronic system. IAF, Tab 12 at 45. That
    the appellant was provided with the material in question, was advised that it
    would be considered in connection with the proposed removal, and not only had
    the opportunity to respond to it but in fact did so precludes a finding that he was
    denied due process of law in violation of the Fifth Amendment. The agency’s
    failure to describe with particularity how it was viewing the additional material
    was not “so substantial and so likely to cause prejudice that no employee can
    fairly be required to be subjected to a deprivation of property under such
    circumstances.” 
    Ward, 634 F.3d at 1279
    .
    The agency did not deny the appellant due process of law by considering
    statements by coworkers.
    ¶25        The agency’s notice of proposed removal included a list of documents
    relied upon, including a Report of Investigation (ROI) issued by agency
    14
    investigators.    IAF, Tab 12 at 57, 199-257.           This included memoranda
    documenting interviews with agency employees ND, MJ, and TR. 
    Id. at 206-07,
          209-11, 221-22.     In his petition for review, the appellant observes that the
    deciding official testified that he considered statements by two of these
    coworkers, and argues that the deciding official’s consideration of this “ex parte”
    information denied him due process.           PFR File, Tab 1 at 12-15.           The
    administrative judge adequately addressed this allegation when he observed that
    the investigative memoranda in question were contained in the ROI “and the
    agency expressly notified the appellant that the ROI was part of the ‘Material
    Relied On’ for its proposal . . . . Thus, the appellant’s suggestion that he was
    unaware that the agency could be relying on these documents is contradicted by
    the plain language in the proposal notice.” ID at 37.
    The agency did not violate the appellant’s due process rights by failing to
    give him notice that he was being charged with intentional falsification.
    ¶26         The essence of the appellant’s complaint in this regard is that, by charging
    him with lack of candor, the agency did not put him on notice that he was being
    charged with intentional falsification, but both the deciding official and the
    administrative judge nevertheless determined that his lack of candor was
    intentional. PFR File, Tab 1 at 12. The proposal notice stated that a special
    agent who is deemed Giglio-impaired 10 impeaches that agent’s credibility as a
    witness, severely hampering the agency’s mission, and that his misconduct
    “seriously impairs the Service’s and public’s ability to rely on your veracity.”
    IAF, Tab 12 at 54.     This gave the appellant fair notice that all aspects of his
    10
    Under Giglio v. United States, 
    405 U.S. 150
    (1972), investigative agencies must, as
    early as possible in a case, turn over any potential impeachment evidence concerning
    the agents involved in the case to prosecutors, who then exercise their d iscretion
    regarding whether the impeachment evidence must be turned over to the defense. Solis
    v. Department of Justice, 117 M.S.P.R. 458, ¶ 4 n.1 (2012). A “Giglio-impaired” agent
    is one against whom there is potential impeachment evidence that would render the
    agent’s testimony of marginal value in a case. I d.
    15
    veracity and credibility were at issue, including whether his lack of candor had
    been intentional.
    ¶27         As discussed above, a lack of candor charge “necessarily involves a degree
    of deception,” and may involve lying under oath as well as a failure to reply fully
    and truthfully.     
    Ludlum, 278 F.3d at 1284-85
    .        Although a charge of lack of
    candor does not necessarily require proof of the specific intent required for a
    falsification charge, it does necessarily entail an allegation that the misconduct at
    issue was deceptive, which by its very nature is intentional. 11 Thus, the agency
    was not required to notify the appellant that it intended to “aggravate” the penalty
    on the basis that his lack of candor was intentional.
    The deciding official did not deny the appellant due process of law by
    determining that he was Giglio-impaired.
    ¶28         The agency’s proposal notice specifically indicated that the proposing
    official believed the appellant’s misconduct would render him Giglio-impaired.
    IAF, Tab 12 at 54. The appellant did not address this issue in his response to the
    proposed removal. 
    Id. at 42-45.
    In issuing his decision to remove the appellant
    from employment, the deciding official concluded that the appellant was
    Giglio-impaired. 
    Id. at 38.
    On review, the appellant argues that it was improper
    for the deciding official to make this determination based on his own experience,
    instead of a determination being made by the United States Attorneys’ Office, and
    that this somehow denied him due process of law. PFR File, Tab 1 at 15-16.
    ¶29         A determination by a deciding official that an employee is Giglio-impaired,
    without notifying the employee in the proposal notice that this would be
    11
    In Payton v. Department of Veterans Affairs, MSPB Docket No. AT-0752-14-0055-I-
    1, Final Order (Jan. 29, 2015), the Board determined in a nonprecedential decision that
    because neither of the sustained charges—which included a charge of lack of candor—
    required proof of intent, the deciding official erred in considering the intentional nature
    of the appellant’s misconduct without advanced notice. We decline to follow Payton to
    the extent that it holds that a decidin g official vio lates due process by considering,
    without notice, the inherently deceptive nature of the conduct underlying any lack of
    candor charge.
    16
    considered, would present significant due process problems.             See Bennett,
    119 M.S.P.R. 685, ¶¶ 9-11; Solis, 117 M.S.P.R. 458, ¶¶ 9-10. Here, the agency
    did give the appellant notice and an opportunity to respond to this issue; he
    simply failed to avail himself of that opportunity.
    The appellant has failed to establish harmful procedural error.
    ¶30            The Board may not sustain an agency decision if it results from harmful
    error in the application of the agency’s procedures. 5 U.S.C. § 7701(c)(2)(A).
    Harmful error cannot be presumed; an agency error is harmful only where the
    record shows that the procedural error was 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. Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681,
    685 (1991). The appellant makes two allegations of harmful procedural error.
    ¶31            The appellant asserts that agency procedures require that proposing officials
    consider employees’ written responses and that the proposing official committed
    harmful error by failing to consider his written response.        PFR File, Tab 1 at
    17-19. The rule he says was violated is IRM 6.752.2.23. PFR File, Tab 1 at 17.
    As the administrative judge properly observed, however, the rule in question
    relates to the duties of an oral reply officer. IAF, Tab 40 at 78; ID at 32. This
    rule has no application to this case because the appellant never requested an oral
    reply.
    ¶32            The appellant asserts that the agency violated agency rules by twice denying
    his request for the presence of counsel regarding his questioning on April 30,
    2010.      PFR File, Tab 1 at 19-22.       He cites section 210.6.2 of the TIGTA
    Operations Manual as being the source of his right to the presence of counsel.
    PFR File, Tab 1 at 21. The first sentence of the section 210.6.2 reads as follows:
    “The presence of counsel in non-criminal or non-prosecution type interviews is a
    privilege and not a right.” IAF, Tab 41 at 37. The administrative judge correctly
    observed that the appellant had not identified any authority to support a finding
    17
    that he was entitled to have an attorney present at the interview. ID at 29. Here,
    the record reflects that the questioning was non-criminal and non-prosecutorial.
    The appellant has not established a basis for suppressing his statements to
    investigators on April 30, 2010.
    ¶33        The appellant argues that nothing he said during the April 30 interview
    could be used against him because it was a custodial interview conducted without
    protection of his Fifth Amendment privilege against self-incrimination. PFR File,
    Tab 1 at 23-25.
    ¶34        The Employee Interview form that the appellant signed on April 30
    informed him that, “[a]s an employee, you must answer the questions asked
    during this interview and under oath when required; failure to answer may subject
    you to dismissal from Federal employment or other disciplinary or adverse
    action.”   IAF, Tab 12 at 219.    It further advised him that “[f]urnishing false
    information may result in criminal prosecution.”     
    Id. That the
    appellant was
    required to answer questions, however, does not, however, mean he was subject
    to a custodial interrogation. See Connett v. Department of the Navy, 31 M.S.P.R.
    322, 327 (1986) (although the possibility of criminal action existed when the
    agency required the appellant to complete a financial disclosure form, the agency
    was not required to give Miranda notice because the appellant was not in
    custodial interrogation), aff’d, 
    824 F.2d 978
    (Fed. Cir. 1987) (Table).     If the
    appellant had refused to answer questions on the ground that his answers might
    incriminate him and the agency had disciplined him for that refusal, we would be
    addressing different legal issues. But since he chose to answer, he was obligated
    to answer truthfully and with candor.      As the administrative judge correctly
    observed, having decided to answer questions, the appellant did not have a right
    to lie. ID at 31 (citing Lachance v. Erickson, 
    522 U.S. 262
    , 268 (1998)).
    18
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    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 have the right to
    request further review of this final decision.
    Discrimination Claims: Administrative Review
    You may request review of this final decision on your discrimination
    claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
    of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
    submit your request 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 your request 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, NE
    Suite 5SW12G
    Washington, D.C. 20507
    You should send your request to EEOC no later than 30 calendar days after
    your receipt of this order. If you have a representative in this case, and your
    representative receives this order before you do, then you must file with EEOC no
    later than 30 calendar days after receipt by your representative. If you choose to
    file, be very careful to file on time.
    Discrimination and Other Claims: Judicial Action
    If you do not request EEOC to review this final decision on your
    discrimination claims, you may file a civil action against the agency on both your
    discrimination claims and your other claims in an appropriate United States
    district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
    19
    the district court no later than 30 calendar days after your receipt of this order. If
    you have a representative in this case, and your representative receives this order
    before you do, then you must file with the district court no later than 30 calendar
    days after receipt by your representative. If you choose to file, be very careful to
    file on time. 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. § 2000e5(f) and
    29 U.S.C. § 794a.
    FOR THE BOARD:                             ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.