Homer Gonzalez v. Department of the Navy ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HOMER PATRICK GONZALEZ, DOCKET NUMBER
Appellant, AT-0752-15-0228-I-1
v.
DEPARTMENT OF THE NAVY, DATE: September 21, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Homer Patrick Gonzalez, Summerville, South Carolina, pro se.
Stephen M. Rodgers, Yorktown, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 2 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 On October 1, 2014, the agency proposed to remove the appellant from his
Materials Handler Inspector position at the Navy Munitions Command Unit on
the basis of three charges: (1) failure to follow instructions (3 specifications);
(2) failure to maintain a condition of employment (2 specifications); and
(3) leaving his job during working hours without proper authorization (absent
without leave). Initial Appeal File (IAF), Tab 5 at 29-36. The first charge
alleged that, on May 28, 2014, the appellant failed to perform an assigned task
(retrieving caulk from a paint locker) and instead switched the brake lines to the
reverse position on an explosives-hauling truck. Id. at 31-32. The second charge
alleged that, because the appellant’s explosives certification was decertified and
later revoked, he failed to meet a condition of his employment and was unable to
2
The appellant also filed a motion for leave to file additional pleadings. Petition for
Review (PFR) File, Tab 6. In this motion, the appellant is seeking leave to submit a
letter describing documents already contained in the record and is asking that the Board
review the described documents. Id. at 4. The appellant has failed to explain how the
additional evidence is new because evidence that is already a part of the record is not
new. Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980). Accordingly,
the appellant’s motion for leave to submit additional evidence is denied.
3
perform his duties. Id. at 32-33. The third charge alleged that, on August 5,
2014, the appellant left work early without proper authorization. Id. at 33. The
appellant responded to the proposed removal orally and in writin g, arguing,
among other things, that he had “never done an unsafe act” and that switching of
brake lines was not “unsafe” under the standard operating procedures because “a
properly operating spring brake chassis . . . will not move with the lines crossed. ”
Id. at 24-28. The deciding official imposed the removal effective November 24,
2014. Id. at 20-23.
¶3 The appellant filed a timely Board appeal challenging his removal. IAF,
Tab 1. In an order and summary of the prehearing conference, the administrative
judge set forth the law and burdens of proof applicable to a chapter 75 removal
appeal and indicated that the only affirmative defenses raised by the appellant
were harmful procedural error and disparate penalties. 3 IAF, Tab 20 at 2-4, 6.
The administrative judge ordered the parties to submit any objections or
exceptions to the summary within 7 days of the order. Id. at 1. Neither party
objected to the summary.
¶4 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision sustaining the charges of failure to follow instructions
and failure to maintain a condition of employment and finding nexus between the
charges and the efficiency of the service. IAF, Tab 32, Initial Decision (ID)
at 3-19. The administrative judge did not sustain the absent without leave charge
but found that the deciding official would have imposed the removal penalty on
3
In an April 30, 2015 order, the administrative judge observed that the appellant
appeared to raise a number of affirmative defenses, including racial discrimination,
gender discrimination, equal employment opportunity retaliation, and whistleblower
retaliation, and ordered him to clarify his affirmative defenses no later than the
prehearing conference. IAF, Tab 10 at 2-3. In the prehearing conference order and
summary, the administrative judge stated that, during the prehearing conference, the
appellant confirmed that he did not intend to raise an affirmative defense of
whistleblower retaliation or discrimination and that he only intended to raise disparate
penalty and harmful error affirmative defenses. IAF, Tab 20 at 5-6. The appellant did
not object to this finding below and does not challenge it on review. PFR File, Tab 1.
4
the basis of the two sustained charges and that removal was not an excessive
penalty for those charges. ID at 20-21. The administrative judge further found
that the appellant failed to establish his disparate penalty claim and failed to
prove that the agency committed harmful procedural error concerning the charges
or the penalty. ID at 21-25. Accordingly, the administrative judge affirmed the
appellant’s removal. ID at 26.
¶5 The appellant has filed a petition for review of the initial decision , and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
On review, the appellant challenges the administrative judge’s findings regarding
the failure to follow instructions charge and submits new evidence purportedly
showing that the factual allegations underlying that charge are untrue. PFR File,
Tab 1 at 3-4. The appellant further argues that the agency failed to produce scan
sheets, which he argues also would show that the agency’s allegations underlying
the failure to follow instructions charge are untrue. Id. at 3-9.
¶6 As noted above, the first charge of failure to follow instructions is
supported by three specifications arising from an alleged incident on May 28,
2014. IAF, Tab 5 at 29, 31-32. The first specification alleges that on that date,
the appellant was assigned to work in Bay 1 with Work Leader F.C. but that he
failed to follow F.C.’s instruction to obtain caulk from a paint locker located near
another bay and instead was seen switching the brake lines on an
explosives-hauling truck. Id. The second specification alleges that, by switching
the brake lines to the reverse position, the appellant made it unsafe for the truck
to transport the explosives and that he violated Navy rules by switching the brake
lines when he was not tasked to do so and had no reason to be on, near, or
performing any maintenance on the trucks. Id. at 32. The third specification
alleges again that the appellant had no reason to be on, near, or in the truck in
question and that his actions violated safety protocols. Id.¶7 At the hearing, the appellant testified that he did not switch the brake lines
as alleged in the first charge. IAF, Tab 28, Hearing Compact Disc (HCD) 4
5
(testimony of the appellant). He also argued that F.C. fabricated the factual
allegations underlying the charge and that he was not even assigned to work with
F.C. in Bay 1 on the date of the alleged brake-switching incident. Id.; IAF,
Tab 16 at 25-26. Rather, he asserted that he had worked with another Work
Leader, M.M., in Bay 2. IAF, Tab 16 at 25-26; HCD 4 (testimony of the
appellant). To support this contention, the appellant submitted a signed statement
by his supervisor, dated January 13, 2015, asserting that the appellant “did not
report to Team Leader [F.C.] on May 28, 2014,” and that, “since the week of
May 19th, 2014, [the appellant] was reassigned to Bay 2 from Bay 1 at building
940.” IAF, Tab 9 at 5.
¶8 In the initial decision, the administrative judge considered the hearing
testimony and record evidence and concluded that the agency proved the factual
allegations as set forth in the failure to follow instructions charge, including its
allegation that the appellant was assigned to work with F.C. in Bay 1 on May 28,
2014. ID at 3-16. In reaching this determination, the administrative judge found
that F.C.’s testimony that the appellant was assigned to work with him on the day
in question was more credible than the appellant’s denial, explaining that F.C .’s
testimony was very detailed and consistent with his prior contemporaneous
statement, while the appellant’s testimony about where he was wo rking that day
was “notably vague.” ID at 9 (citing IAF, Tab 12 at 19). The administrative
judge also found that F.C.’s version of events was corroborated by an April 29,
2015 statement written by the appellant’s supervisor, in which he stated that he
had assigned the appellant to work with F.C. in Bay 1 on May 28, 2014, because
F.C.’s regular work partner was having a “Phase II (physical)” on that day. Id.;
IAF, Tab 12 at 47. The administrative judge further found probative the fact that
the appellant declined to call his supervisor as a witness to challenge his
statement that he assigned the appellant to Bay 1 on May 28, 2014, and observed
that the appellant’s lengthy cross-examination of F.C. did not erode F.C.’s
certainty that the appellant was assigned to work with him that day. ID at 9. The
6
administrative judge noted, moreover, that none of the appellant’s witnesses were
able to recall where the appellant had worked on the day in question or otherwise
discredit F.C.’s testimony on that point. Id. Thus, the administrative judge
concluded that the appellant was assigned to work with F.C. in Bay 1 on May 28,
2014. ID at 9-10.
¶9 On review, the appellant challenges this finding and submits new evidence
to support his contention that he was not assigned to Bay 1 with F.C. on May 28,
2014. PFR File, Tab 1. Specifically, he has provided: (1) an unsworn, signed
statement by a now-retired individual named M.M. stating that he was the
appellant’s assigned Work Leader on May 28, 2014; and (2) two screenshots
showing the results of searches on the Department of Transportation (DOT)
website for DOT-certified physicians within 25 miles of the agency’s facility. 4
Id. at 7-9.
¶10 The Board generally will not consider evidence submitted for the first time
on review absent a showing that: (1) the documents and the information
contained in the documents were unavailable before the record closed despite due
diligence; and (2) the evidence is of sufficient weight to warrant an outc ome
different from that of the initial decision. Cleaton v. Department of Justice,
122 M.S.P.R. 296, ¶ 7 (2015); 5 C.F.R. § 1201.115(d). Here, although M.M.’s
statement and the screenshots postdate the close of the record below, the
4
According to the appellant, the screenshots prove that his supervisor’s April 29, 2015
statement is false. As noted above, the parties submitted contradictory unsworn
statements by the appellant’s supervisor. IAF, Tab 9 at 5, Tab 12 at 47. The
supervisor’s first statement, dated January 13, 2015, states that the appellant did not
report to F.C. on May 28, 2014. IAF, Tab 9 at 5. His second statement, dated April 29,
2015, states that he assigned the appellant to work with F.C. in Bay 1 on May 28, 2014,
because F.C.’s regular work partner was out that day having a phase II physical. IAF,
Tab 12 at 47. The appellant contends that the screenshots establish that the only
DOT-certified physician who could have performed a phase II physical on F.C.’s
regular work partner was Dr. Combs but that, because Dr. Combs only worked on
Tuesdays, it was impossible that F.C.’s regular work partner received a phase II
physical on May 28, 2014—a Wednesday. PFR File, Tab 1 at 4, 8-9; IAF, Tab 23 at 8.
7
information contained in both documents was clearly ava ilable before the record
closed. The appellant asserts, however, that he could not have provided M.M.’s
statement below because “many employees at the time of discovery feared losing
their jobs and did not want to give a statement on my behalf.” PFR File, Tab 1
at 4-6. Regarding the screenshots of the DOT-certified physician search results,
the appellant contends that he was “unaware of the DOT website at the time of
the hearing.” Id. at 4. The appellant has failed to show, however, that he
undertook any efforts below, much less exercised due diligence, to obtain the
information presented for the first time on review. His mere assertions that
employees were too fearful to provide statements in support of his appeal and that
he was unaware of a Government website containing publicly available
information are insufficient to meet his burden of showing that he exercised due
diligence. In addition, the appellant specifically withdrew his request for his
supervisor and M.M. to testify at the hearing. IAF, Tab 20 at 5. Accordingly, we
decline to consider this evidence presented for the first time on review. 5
¶11 The appellant also argues on review that the agency failed to produce all of
the May 28, 2014 scan sheets for Building 940 during discovery and that these
5
The appellant’s new evidence is also insufficient to warrant an outcome different than
that of the initial decision. See Cleaton, 122 M.S.P.R. 296, ¶ 7. The screenshots, one
of which is partially covered by a post-it note that obscures the search criteria, do not
prove that F.C.’s regular work partner could not have obtained a phase II physical on
the day in question from someone other than Dr. Combs. PFR File, Tab 1 at 8-9. The
screenshots also do not preclude the possibility that Dr. Combs was available on the day
in question, even though he typically did not work on Wednesdays. Id. Furthermore,
even if the appellant proved that F.C.’s regular work partner did not obtain a phase II
physical on the day in question, that detail on its own would be insufficie nt to warrant a
different finding than that reached by the administrative judge on the dispositive issues.
Likewise, M.M.’s unsworn statement, which conflicts with the other evidence of record
and hearing testimony found to be credible by the administrative judge, does not
warrant a different outcome than that of the initial decision. See Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the Board must defer to
an administrative judge’s credibility determinations when they are based on observing
the demeanor of witnesses testifying at a hearing unless there are “sufficiently sound”
reasons to overturn such determinations).
8
documents would show that he scanned material in Bay 2 on May 28, 2014, and
prove that he was not assigned to Bay 1 on that date, as alleged by the agency.
PFR File, Tab 1 at 3, 5. As noted by the agency, the appellant raised this same
argument in his June 10, 2015 motion for sanctions. PFR File, Tab 3 at 7; IAF,
Tab 21. The agency responded to the appellant’s motion for sanctions below ,
asserting that it had provided the appellant with copies of all of the scan sheets
for Building 940 from May 28, 2014, and attaching copies of those documents,
which became part of the record. IAF, Tab 22. During the hearing, the
administrative judge denied the appellant’s motion for sanctions, finding that the
agency had not failed to produce discoverable scan she ets. HCD 4 (ruling of the
administrative judge). In so finding, the administrative judge credited the hearing
testimony of J.H., the Ordnance Operations Manager, who testified that the
agency had produced all of the scan sheets from Bay 1, Bay 2, and Bay 3 of
Building 940 that were created on May 28, 2014, and explained their contents.
HCD 4 (testimony of J.H.); IAF, Tab 30 at 74-92, 103. The appellant has
provided no reason on review to disturb the administrative judge’s decision to
deny his motion for sanctions or his finding that the agency produced the
discoverable scan sheets. Defense Intelligence Agency v. Department of Defense,
122 M.S.P.R. 444, ¶ 16 (2015) (stating that administrative judges have broad
discretion to regulate the proceedings before them, including the authority to rule
on discovery motions and to impose sanctions as necessary to serve the ends of
justice); 5 C.F.R. § 1201.43(a).
¶12 Furthermore, contrary to the appellant’s argument below and on review that
the purported additional scan sheets would provide information regarding which
bay and work leader he was assigned to on May 28, 2014, both F.C. and J.H.
testified that scan sheets do not contain that type of information. HCD 4
(testimony of F.C. and J.H.); IAF, Tab 30 at 55, 103. As noted above, the
administrative judge found both of these agency witnesses to be credible , and the
appellant has provided no reason to disturb this finding or to suspect that there
9
are additional scan sheets with information different than those already provided
by the agency. See Haebe, 288 F.3d at 1301; ID at 9; HCD 4.
¶13 The appellant’s remaining arguments concerning the administrative judge’s
findings regarding the failure to follow instructions and failure to maintain a
condition of employment charges constitute mere disagreement with the
administrative judge’s well-reasoned findings and credibility determinations and
provide no basis to disturb the initial decision. See Forte v. Department of the
Navy, 123 M.S.P.R. 124, ¶ 16 (2016) (finding that mere disagreement with the
administrative judge’s implied credibility findings provides no basis for
disturbing the initial decision); Davison v. Department of Veterans Affairs,
115 M.S.P.R. 640, ¶ 9 (2011) (finding that mere disagreement with an
administrative judge’s explained findings is not a basis to grant a petition for
review).
¶14 Finally, the appellant has not challenged the administrative judge’s findings
regarding nexus between the sustained charges and the efficiency of the service ,
the reasonableness of the penalty, or the appellant’s affirmative defenses,
PFR File, Tab 1, and we discern no reason to disturb them. 6 See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 106-07 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility).
6
In finding that the penalty was reasonable, the administrative judge determined that
the appellant failed to prove his disparate penalties claim. ID at 21-23. Our decision in
Singh v. U.S. Postal Service, 2022 MSPB 15, ¶¶ 10, 13-14, issued after the initial
decision in this appeal, clarifies that, in assessing a claim of disparate penalty, the
relevant inquiry is whether the agency knowingly and unjustifiably treated employees
who engaged in the same or similar offenses differently. There is no evidence in the
record to indicate that the agency did so in this case.
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NOTICE OF APPEAL RIGHTS 7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(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 th e
following address:
7
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
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.g ov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 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
12
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
13
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. 8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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 ou r 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.
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
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/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.