Valentine Ukandu v. Department of the Air Force ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALENTINE UKANDU, DOCKET NUMBER
Appellant, AT-0752-21-0261-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: December 8, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Matthew Fogg, Washington, D.C., for the appellant.
Sandra Fortson, Esquire, Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the Atlanta Regional Office for further adjudication in accordance with
this Remand Order.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
¶2 The appellant was employed as a GS-13 Contract Specialist with the
agency. Initial Appeal File (IAF), Tab 10 at 20. A Defense Acquisition
Workforce Improvement Act (DAWIA) Level II certification is a requirement for
a GS-13 Contract Specialist. IAF, Tab 20 at 2 (setting forth the parties’
stipulations). Effective March 2, 2021, the agency removed the appellant from
the Federal service based on the charges of failure to maintain a condition of
employment (1 specification) and lack of candor (2 specifications). IAF, Tab 7
at 22-30. The agency alleged that the appellant did not maintain a condition of
employment because he did not possess a DAWIA Level II certification and that
he lacked candor when he misstated his level of certification in the job
application process. Id. at 22-23.
¶3 The appellant filed a Board appeal challenging his removal. IAF, Tab 1.
He also raised affirmative defenses of harmful procedural error, prohibited
personnel practices, unlawful discrimination, and retaliation for other protected
activity. Id. at 3. The administrative judge issued an order informing the
appellant how to prove his affirmative defenses, IAF, Tab 14 at 2-9, and an order
setting forth the burden of proof and elements for the agency’s charges of failure
to maintain a condition of employment and lack of candor. IAF, Tab 20 at 1-2.
¶4 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision that affirmed the appellant’s removal. IAF, Tab 25,
Initial Decision (ID) at 1, 15. The administrative judge sustained the charge of
failure to maintain a condition of employment because he found that a DAWIA
Level II certification was required for contract specialists at or higher than
GS-11, and the appellant’s Level II certification was revoked in 2012. 2 ID at 3-6.
2
The agency’s Acquisition Professional Development Program (APDP) Certification
Manager explained that the appellant was given a DAWIA Level II certification
erroneously before the process for agency acquisition certifications became automated
in 2012. IAF, Tab 23, Hearing Recording Day 1 (HR1) (testimony of the APDP
Certification Manager). The appellant’s certification was deleted from the agency’s
3
He noted that when, as here, there is no evidence of bad faith or patent unfairness,
the Board defers to the agency’s determinations as to the requirements that must
be fulfilled in order for an individual to qualify for appointment to a particular
position and to retain that position. ID at 6. The administrative judge sustained
the charge of lack of candor, reasoning that the appellant made a knowing
misrepresentation concerning his DAWIA Level II certification in applying for a
Supervisory Contract Specialist position in October 2020 and in providing
documents to an agency human resources employee showing that he had a
Level II certification in November 2020. ID at 7-8. He found that the appellant
failed to prove his claims of race, national origin, and age discrimination,
retaliation for equal employment opportunity (EEO) activity, and harmful
procedural error. ID at 8-13. Finally, the administrative judge found that the
agency proved nexus and that removal was a reasonable penalty. ID at 13-14.
¶5 The appellant has filed a petition for review of the initial decision. 3
Petition for Review (PFR) File, Tab 2. He sets forth his extensive training in
procurement matters, and he claims that he met the requirements for a DAWIA
system in 2012 due to the appellant’s incomplete training, i.e., he had not completed a
contracting course. Id. The agency’s Training and Certification Help Desk Manager
testified that he discovered that the appellant had not completed the requirements for
DAWIA Level II certification in 2019 or 2020 when the appellant sought to attend
training for DAWIA Level III certification. HR1 (testimony of the agency’s Training
and Certification Help Desk Manager).
3
The appellant asserts that, although the agency removed his DAWIA Level II
certification in 2011, he believed that the agency reinstated his Level II certification, in
accord with a settlement agreement executed with the agency in 2014, but the agency
did not do so. Petition for Review (PFR) File, Tab 2 at 5. The administrative judge
correctly noted, in a compliance initial decision, that there was no term in that
agreement that required the reinstatement of the appellant’s DAWIA Level II
certification. See Ukandu v. Department of the Air Force, MSPB Docket Nos. CH-
531D-13-0343-C-2, CH-0432-13-0372-C-2, Compliance Initial Decision at 4-5
(June 22, 2021).
4
Level II certification. Id. at 4-5. The agency has filed a response. 4 PFR File,
Tab 4.
ANALYSIS
¶6 The charge of failure to fulfill a condition of employment contains two
elements: (1) the requirement at issue is a condition of employment; and (2) the
appellant failed to meet that condition. Gallegos v. Department of the Air
Force, 121 M.S.P.R. 349, ¶ 6 (2014). Absent evidence of bad faith or patent
unfairness, the Board defers to the agency’s requirements that must be fulfilled
for an individual to qualify for appointment to, or retention in, a particular
position. Id.¶7 In this appeal, the condition of employment at issue is a DAWIA Level II
certification. IAF, Tab 7 at 22. It is undisputed that the certification is a
requirement for the appellant’s position, and thus, the first element of the charge
is satisfied. IAF, Tab 20 at 2. The issue is whether the second element—that the
appellant failed to meet a condition of employment—is satisfied.
¶8 On review, the appellant reiterates that he met the requirements for a
DAWIA Level II certification. PFR File, Tab 2 at 4. The administrative judge
considered the appellant’s testimony on the matter, but he found that the agency’s
Training and Certification Help Desk Manager credibly testified that the
academic documentation submitted by the appellant was not adequate equivalent
coursework to support substitution for the agency’s coursework requirements.
ID at 5; IAF, Tab 23, Hearing Recording Day 1 (HR1) (testimony of the agency’s
Training and Certification Help Desk Manager). Thus, the administrative judge
4
Nearly a year after the close of the record on petition for review, the appellant filed a
reply to the agency’s response to the petition for review. PFR File, Tab 5. Because the
appellant has not shown that the arguments in the pleading are new and material and
that they could not have been raised prior to the close of the record, we have not
accepted them for consideration. See 5 C.F.R. § 1201.114(k). As we are remanding
this matter, the appellant may make his arguments in the remand proceeding consistent
with the administrative judge’s instructions and the Board’s regulations.
5
found that the appellant failed to meet the agency’s requirement and that the
agency proved its charge of failure to maintain a condition of employment. ID
at 6.
¶9 However, in appeals such as this, when the agency controls the withdrawal
or revocation of a certification necessary to perform in a position, the Board’s
authority generally extends to a review of the merits of that withdrawal or
revocation. Adams v. Department of the Army, 105 M.S.P.R. 50, ¶¶ 10, 19
(2007), aff’d, 273 F. App’x 947 (Fed. Cir. 2008). Specifically, in Adams, the
agency suspended the appellant’s computer access and then removed him for
failure to maintain access to the agency’s computer system. Id., ¶ 6. Although
the agency in that appeal argued that the Board lacked the authority to review the
merits of the decision to suspend computer access because it was not an
appealable adverse action, the Board found that, when a removal is based on the
failure to possess a certification or similar qualification, it had the authority to
review the merits of the agency’s revocation of the certification or similar
qualification necessary for the employee to hold his position. 5 Id., ¶¶ 9-10.
¶10 Similarly, in Siegert v. Department of the Army, 38 M.S.P.R. 684, 685-86
(1988), the agency revoked the appellant’s clinical privileges and then removed
him from his Clinical Psychologist position for failure to maintain those
privileges. The Board found that it had the authority to review the actions of the
agency credentialing committee and remanded the appeal to the administrative
judge to address that issue. Id. at 691. Finally, in a case very similar to the
instant appeal, McGillivray v. Federal Emergency Management Agency,
58 M.S.P.R. 398, 402 (1993), the agency removed the appellant based on the loss
of his procurement authority, and the Board found that it had the authority to
5
The certification at issue in this appeal and in the appeals discussed in this decision do
not involve national security determinations, over which the Board lacks jurisdiction.
Adams, 105 M.S.P.R. 50, ¶ 11; see Department of the Navy v. Egan, 484 U.S. 518,
530-31 (1988).
6
consider the reasons underlying the agency’s decision to revoke the employee’s
procurement authority. 6
¶11 Because the administrative judge failed to fully identify the issues in this
appeal, and the parties did not have the opportunity to fully develop the record on
those issues, remand is required. On remand, the administrative judge shall
afford the parties the opportunity to conduct discovery and submit additional
evidence and argument. The administrative judge shall hold a supplemental
hearing, if requested by the appellant, and shall issue a new initial decision
addressing the agency’s charges, 7 nexus, penalty, and the appellant’s affirmative
defenses. 8 See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589
(1980) (stating that an initial decision must identify all material issues of fact and
law, summarize the evidence, resolve issues of credibility, and include the
6
The Board has followed the principle applied in Adams, Siegert, and McGillivray in
other cases. See, e.g., Jacobs v. Department of the Army, 62 M.S.P.R. 688, 694-95
(1994) (reviewing a security guard’s disqualification from the agency’s Chemical
Personnel Reliability Program based on his alleged misconduct); Cosby v. Federal
Aviation Administration, 30 M.S.P.R. 16, 17-19 (1986) (reviewing an Air Traffic
Control Specialist’s decertification under the agency’s medical standards).
7
On petition for review, the appellant does not specifically challenge the administrative
judge’s determination that the agency proved the lack of candor charge. Because we
are remanding the case for further proceedings regarding the charge of failure to
maintain a condition of employment, the administrative judge should determine on
remand whether any additional evidence developed on remand affects his analysis of
the lack of candor charge. If he determines that new findings regarding the lack of
candor charge are not needed, the administrative judge may adopt his prior findings
regarding that charge in his new initial decision.
8
Regarding the appellant’s affirmative defenses of race, national origin, and age
discrimination and retaliation for prior EEO activity, the administrative judge should
apply the standards of proof set forth in Pridgen v. Office of Management & Budget,
2022 MSPB 31, ¶¶ 21-22. The administrative judge shall apprise the appellant that,
although he may prevail on these claims by showing that the prohibited consideration
was a motivating factor in the contested personnel action, but-for causation is required
in order for him to obtain full status quo ante relief, including reinstatement, back pay,
and damages. See id., ¶¶ 21-22, 24 n.5. Furthermore, the appellant should be aware
that there are multiple methods of proof for a discrimination or reprisal claim. See id.,
¶ 24.
7
administrative judge’s conclusions of law and legal reasoning, as well as the
authorities on which that reasoning rests).
ORDER
¶12 For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.