Robert Marcell v. Department of Veterans Affairs , 2022 MSPB 33 ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 33Docket No. DE-0752-13-1551-I-1
Robert C. Marcell,
Appellant,
v.
Department of Veterans Affairs,
Agency.
September 23, 2022
Ashley Leonard, Esquire, Salt Lake City, Utah, for the appellant.
Chau Phan, Salt Lake City, Utah, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the charge of threatening bodily injury to agency employees, found that
the appellant did not prove his retaliation claims, and affirmed his removal. For
the reasons discussed below, we DENY the appellant’s petition for review. We
AFFIRM the administrative judge’s finding that the agency proved the charge.
However, we VACATE the administrative judge’s finding that the appellant’s
Family and Medical Leave Act of 1993 (FMLA) leave requests and Office of
Workers’ Compensation Programs (OWCP) claim constitute activity protected by
5 U.S.C. § 2302(b)(9). To the extent the appellant’s retaliation claims could for m
2
the basis for another affirmative defense, we conclude he has not proven these
claims and thus a different outcome is not warranted. Finally, we AFFIRM the
administrative judge’s finding that the removal penalty is reasonable based on the
sustained misconduct.
BACKGROUND
¶2 The relevant background information, as recited in the initial decision, is
generally undisputed. Initial Appeal File (IAF), Tab 43, Initial Decision (ID).
The appellant was employed by the agency as a Legal Administrative Specialist.
ID at 2. In 2012 and 2013, he took FMLA leave to care for his parents and, later,
to care for his own medical condition. Id. After he returned to work in
April 2013, the appellant sustained an injury when walking in to work, and he
submitted a claim for OWCP benefits. ID at 2-3; IAF, Tab 23 at 43-44. On
June 25, 2013, the appellant’s supervisor notified him that he was required to
report for work on June 27, 2013. 1 ID at 3. On June 26, 2013, the appellant
spoke with his supervisor and the Human Resources (HR) Manager and he told
them that he did not have a doctor’s note releasing him to return to work the next
day. The HR Manager, following up on this conversation, contacted the
emergency room where the appellant went for treatment after he sustained his
on-the-job injury. The HR Manager questioned an emergency room staff member
about the appellant’s visit there and was told that the appellant’s physician,
according to the notes in the system, did not approve any additional time off from
work for the appellant. When the appellant was informed of this, he became
angry that no one told him beforehand that they would be contacting the
emergency room and he thought the communication with the emergency room
employee may have violated his privacy rights and his rights unde r the Health
1
The appellant, in connection with his OWCP-claimed injury, provided doctor’s notes
which excused him from returning to work until June 27, 2013. ID at 4 n.2; IAF ,
Tab 23 at 52.
3
Insurance Portability and Accountability Act. ID at 3-4. Later that same day, the
appellant called the agency’s Western Area office and said, “If I have to go into
work tomorrow, I will probably kill someone.” 2 ID at 4-5; IAF, Tab 8 at 19. The
agency ordered the appellant not to return to work, notified local and agency law
enforcement, and disabled the appellant’s security badge . ID at 5.
¶3 The agency removed the appellant from the Federal service , effective
August 9, 2013, for threatening bodily injury to agency employees. ID at 6; IAF,
Tab 8 at 11-15, 19-21. The appellant timely filed this appeal and alleged, among
other things, that the agency removed him in retaliation for filing FMLA leave
requests and an OWCP claim. IAF, Tab 1, Tab 31 at 1. After holding the
requested hearing, IAF, Tab 36, Hearing Compact Disc 1, Tab 40, Hearing
Compact Disc 2 (HCD-2), the administrative judge sustained the charge and
found that the appellant failed to prove his retaliation claims under 5 U.S.C.
§ 2302(b)(9), ID at 8-16. The administrative judge further found that the removal
promoted the efficiency of the service and was within the bounds of
reasonableness. ID at 16-19. The appellant has filed a petition for review and the
agency has filed a response. 3 Petition for Review (PFR) File, Tabs 1, 3.
2
In response to the notice of proposed removal, the appellant stated that he “may have
said something that could have been interpreted as a threat,” but he could not recall his
statements to agency employees. IAF, Tab 8 at 17.
3
The agency was required to file a response to the petition for review by Saturday,
November 5, 2016. Petition for Review (PFR) File, Tab 2 at 1. Where, as here, the
deadline falls on a weekend, the filing deadline is extended to the next business day.
5 C.F.R. § 1201.23. Thus, the agency’s submission was due on Monday, November 7,
2016. The agency’s response was electronically filed on Tuesday, November 8, 2016.
PFR File, Tab 3. The agency did not offer any explanation for its delay. Because the
agency’s response was untimely filed with no good cause shown, we need not consider
it. 5 C.F.R. § 1201.114(g). Nonetheless, we have reviewed the agency’s response and
it does not warrant a different outcome.
4
ANALYSIS 4
The administrative judge properly sustained the agency’s charge.
¶4 In Metz v. Department of the Treasury, 780 F.2d 1001, 1004
(Fed. Cir. 1986), the U.S. Court of Appeals for the Federal Circuit explained that,
in deciding whether statements constitute threats, the Board is to apply the
reasonable person criterion, considering the listeners’ reactions and
apprehensions, the wording of the statements, the speaker’s intent, and the
attendant circumstances. The administrative judge properly identified this
standard and considered these criteria in the initial decision. ID at 10-12.
Importantly, the administrative judge noted that the appellant’s testimony was at
odds with the testimony of agency witnesses regarding the appellant’s statements
during the June 26, 2013 telephone call, and he credited the testimony of the
agency witnesses who said that the appellant made the statement in question. ID
at 8-10 (citing Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987)).
The Board must defer to an administrative judge’s credibility determinations
when they are based, explicitly or implicitly, on observing the demeanor of
witnesses testifying at a hearing; the Board may 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). The appellant has not identified
such reasons. Indeed, the appellant does not appear to challenge the
administrative judge’s credibility determinations on review. Accordingly, we
affirm the administrative judge’s credibility determinations.
¶5 Regarding the appellant’s assertion on review that he did not make a threat
because his statement was conditioned on his returning to work and the agency
ordered him not to return to work, PFR File, Tab 1 at 4, the administrative judge
addressed this argument in the initial decision, ID at 12-13. The administrative
4
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5
judge noted that some threats of bodily harm, even if conditional, are per se
unsettling and support a finding that they constitute a threat. ID at 12 -13. We
agree. See Rose v. U.S. Postal Service, 109 M.S.P.R. 31, ¶ 26 (2007) (explaining
that even conditional threats of bodily harm with a firearm are unsettling per se
and support a finding that they constitute a threat). For the reasons stated herein
and in the initial decision, we agree with the administrative judge that the agency
proved the charge.
We vacate the administrative judge’s finding that the appellant’s FMLA leave
requests and OWCP claim constitute activity protected by 5 U.S.C. § 2302(b)(9),
but a different outcome is not warranted.
¶6 Under 5 U.S.C. § 2302(b)(9)(A), an agency official may not take any
personnel action against any employee “because of . . . the exercise of any appeal,
complaint, or grievance right.” Although not raised by the appellant on review,
the Board has held that an OWCP claim is not the “exercise of any appeal,
complaint, or grievance right” because it does not constitute an initial step toward
taking legal action against an employer for the perceived violation of an
employee’s rights. Von Kelsch v. Department of Labor, 59 M.S.P.R. 503, 508-09
(1993), overruled on other grounds by Thomas v. Department of the Treasury,
77 M.S.P.R. 224, 236 n.9 (1998), overruled by Ganski v. Department of the
Interior, 86 M.S.P.R. 32 (2000). Although Von Kelsch arose in the context of an
individual right of action appeal, and the appellant here has brought an appeal
pursuant to 5 U.S.C. chapter 75, the Board’s interpretation of 5 U.S.C.
§ 2302(b)(9) in Von Kelsch still applies. See, e.g., Graves v. Department of
Veterans Affairs, 123 M.S.P.R. 434, ¶ 18 (2016) (finding that subsequent
amendments to section 2302 in the Whistleblower Protection Enhancement Act o f
2012 did not alter the Board’s analysis in Von Kelsch concerning the meaning of
the terms “appeal, complaint, or grievance” in 5 U.S.C. § 2302(b)(9));
Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 10 (2014) (same). Thus, we
conclude that the appellant’s OWCP claim does not constitute activity falling
6
within the protection of section 2302(b)(9). We further find that the appellant’s
FMLA leave requests also are excluded from protection under 5 U.S.C.
§ 2302(b)(9) because they do not constitute an initial step toward taking legal
action against the agency for the perceived violation of his rights. We therefore
vacate the administrative judge’s analysis in this regard.
¶7 The administrative judge acknowledged in the initial decision that FMLA
leave requests arguably are not protected by 5 U.S.C. § 2302(b)(9)(A), but he
correctly noted that the Board implied that such activity was protected in Doe v.
U.S. Postal Service, 95 M.S.P.R. 493, ¶ 11 (2004) (finding that the appellant’s
retaliation claim failed because he did not show a causal relationship between the
demotion action and his FMLA leave request). ID at 13 n.4. The Board in
Crump v. Department of Veterans Affairs, 114 M.S.P.R. 224, ¶¶ 10-13 (2010),
overruled on other grounds by Savage v. Department of the Army, 122 M.S.P.R.
612 (2015), similarly appeared to find that an OWCP claim constitutes protected
activity without mentioning Von Kelsch or the analysis therein. We overrule Doe
and Crump to the extent that they explicitly or implicitly found that FMLA leave
requests or an OWCP claim constitutes protected activity under 5 U.S.C.
§ 2302(b)(9).
¶8 Notwithstanding our finding that the appellant’s activity is not protected by
5 U.S.C. § 2302(b)(9), we have nonetheless considered his arguments to the
extent that they could form the basis for another affirmative defense, such as a
violation of 5 U.S.C. § 2302(b)(10), which makes it a prohibited personnel
practice to “discriminate for or against any employee or applicant for employment
on the basis of conduct which does not adversely affect the performance of the
employee or applicant or the performance of others.” On review, the appellant
cites to the agency’s failure to inform him of the proper procedures and the
agency’s poor and delayed handling of his OWCP claim as evidence of its animus
against him. PFR File, Tab 1 at 6-8. Even if we assume for the purposes of our
analysis that the agency harbored such animus, he has not persuasively explained
7
how any such animus led to the removal. Importantly, he does not challenge the
administrative judge’s finding that the proposing and deciding official s “credibly”
testified that the appellant’s FMLA leave requests and OWCP claim were not
factors in their respective decisions. ID at 16. We are convinced that, given the
serious nature of the charge against the appellant, the agency would have
removed him in the absence of such activity. For these reasons, we find that the
appellant has failed to prove that the removal was in retaliation for his FMLA
leave requests or OWCP claim.
The appellant’s removal was within the bounds of reasonableness. 5
¶9 The Board will review an agency-imposed penalty only to determine if the
agency considered all the relevant factors and exercised management discretion
within tolerable limits of reasonableness. Douglas v. Veterans Administration,
5 M.S.P.R. 280, 306 (1981). In the initial decision, the administrative judge
discussed the deciding official’s testimony concerning his penalty analysis and
concluded that the removal penalty was reasonable. ID at 17-18. The appellant
argues on review that the removal penalty was not reasonable because the
deciding official and the administrative judge failed to consider mitigating
factors, and the agency imposed the action pursuant to a zero tolerance policy.
PFR File, Tab 1 at 1, 3-6. He also asserts that he was similarly situated to
another agency employee who made threats repeatedly but suffered no
disciplinary action. Id. at 8.
¶10 We have considered the appellant’s argument that the administrative judge
failed to adequately consider a number of mitigating factors, including, among
other things, his 14 years of Federal service, “exemplary” work record, and the
circumstances that led to the irate June 26, 2013 telephone call. Id. at 4-6. The
5
Although not raised by the appellant on review, we affirm the administrative judge’s
conclusion that a removal action based on a threat to agency employees promotes the
efficiency of the service. ID at 16-17; Rose, 109 M.S.P.R. 31, ¶ 30.
8
administrative judge noted that the deciding official considered these mitigating
factors, among others. ID at 18; IAF, Tab 8 at 11-15. Thus, this argument is
without merit.
¶11 The appellant also appears to assert on review that the agency failed to
consider his medical condition or mental impairment. PFR File, Tab 1 at 5 -6. In
this regard, the appellant contends that neither the proposing nor deciding official
considered the fact that he was on leave for a work-related injury at the time of
the incident in question. Id. at 6. This assertion, however, is contradicted by the
written record. IAF, Tab 8 at 12 (acknowledging in the decision letter that the
appellant expressed anger regarding a perceived violation of his privacy rights by
agency officials concerning his continued leave of absence due to an injury). Our
reviewing court has held that “when mental impairment or illness is reasonably
substantiated, and is shown to be related to the ground of removal, this must be
taken into account when taking an adverse action against the employee.”
Malloy v. U.S. Postal Service, 578 F.3d 1351, 1356 (Fed. Cir. 2009). Here,
however, the appellant has not sufficiently explained how his workplace injury is
related to or otherwise led him to make the threat during the June 26, 2013
telephone call. Accordingly, this argument is without merit.
¶12 The agency’s table of penalties shows that for a first offense of “[f]ighting,
threatening, attempting or inflicting bodily injury to another [or] engaging in
dangerous horseplay,” the penalty ranges from reprimand to removal. IAF,
Tab 27 at 75. However, the deciding official stated in the decision letter that the
agency has a zero tolerance policy regarding workplace violence issues. IAF,
Tab 8 at 12. In the initial decision, the administrative judge noted that when an
agency imposes a removal under a zero tolerance policy without giving
appropriate consideration to the relevant Douglas factors, the penalty
determination is not entitled to deference. ID at 17 (citing Wiley v. U.S. Postal
Service, 102 M.S.P.R. 535, ¶¶ 14-15 (2006), aff’d, 218 F. App’x 1001 (Fed. Cir.
2007)). The administrative judge appeared to credit the deciding official’s
9
testimony that the agency’s zero tolerance policy for workplace violence meant
that it was required to address every instance of workplace violence with some
type of action, though not necessarily with a removal action. 6 ID at 18-19;
HCD-2 (testimony of the deciding official). The deciding official’s description of
the agency’s zero tolerance policy does not run afoul of Wiley or other Board
decisions because the record reflects that the deciding official considered the
relevant Douglas factors. ID at 18-19; IAF, Tab 8 at 11-15, Tab 18; HCD-2
(testimony of the deciding official).
¶13 Finally, the appellant asserts that he was similarly situated to another
employee who made threatening statements on a daily basis but that that
employee suffered no disciplinary action. 7 PFR File, Tab 1 at 8. This argument
is unavailing. The only evidence the appellant offers to support this assertion is
the testimony of a union representative, who said that she heard another agency
employee making statements such as “I’m going to kill that rater” or “I’m going
to shoot the rater” on an almost daily basis. Id.; HCD-2 (testimony of the union
representative). The union representative testified, however, that she did not take
the other employee’s statements seriously because the other employee made such
statements all the time. HCD-2 (testimony of the union representative). Without
any citation to the record, the appellant also states on review that a supervisor
heard the other employee make such statements, but the supervisor laughed. PFR
File, Tab 1 at 8. Even if we assume for the purposes of our analysis that the
appellant’s characterization of the supervisor’s behavior is true, it appears that
6
The appellant correctly notes in his petition for review that the deciding official
testified that “threatening is removal.” PFR File, Tab 1 at 4. However, we understand
his testimony to mean that a threat to kill someone is at the more serious end of the
spectrum of offenses in the agency’s table of penalties, and would more likely result in
a removal, whereas “dangerous horseplay” is a less serious offense and might only
result in a suspension or reprimand. HCD-2 (testimony of the deciding official).
7
Although somewhat unclear, the appellant appears to assert that his OWCP claim and
FMLA leave requests were the basis for the differential treatment. Id.10
the agency took the appellant’s threat seriously, supra ¶ 2, whereas it did not take
the other employee’s statements seriously at all, which could explain the
difference in treatment.
¶14 Ultimately, a threat to take someone’s life is a serious offense. Facas v.
U.S. Postal Service, 35 M.S.P.R. 426, 431 (1987). The Board has held that a
removal based on a threat often will be within the bounds of reasonableness even
if there are mitigating factors. Rose, 109 M.S.P.R. 31, ¶ 31; Facas, 35 M.S.P.R.
at 430-31. The appellant has not persuaded us that the administrative judge erred
when he concluded that the deciding official considered the relevant Douglas
factors and that the removal penalty was reasonable. We therefore affirm the
administrative judge’s analysis in this regard.
ORDER
¶15 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.11 3 (5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS 8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
8
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
12
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
13
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision. 5
U.S.C. § 7703(b)(1)(B).
9
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of compet ent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warr ants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.