Douglas Alarid v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOUGLAS A. ALARID, DOCKET NUMBER
Appellant, SF-0752-14-0256-B-2
v.
DEPARTMENT OF THE ARMY, DATE: March 13, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Paul E. Carreras, Santa Rosa, California, for the appellant.
Bernard Lee Gotmer, Fort Hunter Liggett, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision
that sustained his removal. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
material fact; the initial decision is based on an erroneous interpretation of statute
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 remand initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant served as a Police Officer with the agency’s Camp Parks
Reserve Forces Training Area Police Department. Alarid v. Department of the
Army, MSPB Docket No. SF-0752-14-0256-I-1, Initial Appeal File (IAF), Tab 5
at 18. On October 4, 2013, the agency proposed the appellant’s removal based on
the following charges: (1) conspiracy to purchase and distribute an unauthorized
Federal police badge; and (2) the manufacture and distribution of an unauthorized
Federal police identification card. Id. at 38-43. The appellant provided a written
reply to the proposed removal, and on December 13, 2013, the agency issued a
decision sustaining the charges and removing the appellant, effective on the same
date. Id. at 18, 20-29, 31-36.
¶3 The appellant timely filed an initial appeal with the Board , and following a
hearing, the administrative judge issued an initial decision sustaining the
agency’s charges and finding that the appellant failed to prove that his removal
was the result of reprisal for equal employment opportunity (EEO) activity, that
the appellant’s misconduct had an adverse effect on the efficiency of the service,
3
and that the penalty of removal was reasonable. IAF, Tab 41, Initial Decision.
The appellant petitioned the Board for review of the initial decision, and in an
August 21, 2015 Opinion and Order, the Board held that the administrative judge
did not notify the appellant of the relevant burdens to prove his affirmative
defenses, did not consider his affirmative defense of reprisal for participation in
union activity under 5 U.S.C. § 2302(b)(9)(B), and did not address the appellant’s
other claims of reprisal for whistleblowing and due process violations. Alarid v.
Department of the Army, 122 M.S.P.R. 600, ¶¶ 7-17 (2015). The Board vacated
the initial decision and remanded the appeal for the administrative judge to
further adjudicate the appellant’s affirmative defenses. Id., ¶¶ 1, 18.
¶4 On remand, the administrative judge notified the appellant of the relevant
burdens for the affirmative defenses, considered additional evidence and
argument from the parties regarding the appellant’s affirmative defenses , and
issued a remand initial decision finding that the appellant had not proven his
affirmative defenses of due process violations and reprisal for participation in
union activity and whistleblowing. Alarid v. Department of the Army, MSPB
Docket No. SF-0752-14-0256-B-2, Refiled Remand File (RRF), Tab 3, Tab 5,
Remand Initial Decision (RID) at 13-25. The administrative judge also adopted
his findings from the initial decision that the agency proved its charges, there was
a nexus between the appellant’s misconduct and the efficiency of the service, and
the penalty of removal was reasonable. RID at 2-12, 25-26.
¶5 The appellant has filed a petition for review of the remand initial decision
in which he argues that the deciding official perjured himself during the hearings
held in this matter; the agency did not prove by clear and convincing evidence
that it would have taken the removal action in the absence of his protecte d union
activity; the agency did not prove its charges, that a nexus existed between the
misconduct and the efficiency of the service, and that the penalty of removal was
reasonable; and the administrative judge slept through portions of the second
hearing held in this case. Alarid v. Department of the Army, MSPB Docket
4
No. SF-0752-14-0256-B-2, Remand Petition for Review (RPFR) File, Tab 3. The
agency has filed a response opposing the petition for review, to which the
appellant has filed a reply. RPFR File, Tabs 5-6. As set forth below, the
administrative judge properly found that the agency proved its charges by
preponderant evidence, and the appellant has not shown that the administrative
judge erred in finding the deciding official’s testimony credible or that the
administrative judge was asleep during the second hearing. We also find that the
appellant has not shown error in the administrative judge’s rulings that the agency
established by clear and convincing evidence that it would have removed the
appellant absent his protected union activity, that the appellant did not show that
his protected disclosures were a contributing factor in the removal, and that the
agency proved a nexus between the misconduct and the efficiency of the service
and that the penalty of removal was reasonable.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the a gency proved its charges.
¶6 On review, the appellant does not challenge the administrative judge’s
finding that the agency proved its charges other than to generally dispute the
administrative judge’s finding that the agency’s evidence was strong and clear in
support of its removal action. RPFR File, Tab 3 at 15; RID at 2-12. The
appellant also alleges that the deciding official committed perjury during the
hearings held in this matter, which “calls [his] credibility into serious question,
including his decision to remove Appellant.” RPFR File, Tab 3 at 15. We
address these arguments below.
¶7 The administrative judge found that the agency proved its charge of the
manufacture and distribution of an unauthorized Federal police identification card
by preponderant evidence. RID at 4-10. Specifically, the administrative judge
found that the appellant admitted to making at least two Federal police
identification cards on the agency’s identification card machine and providing
5
them to a former employee, the first of which was made pursuant to a settlement
agreement, but that a subsequent identification card was not authorized by the
agency because it contained language not authorized by the settlement agreement
or the chief of police, and the appellant’s explanation as to why the language was
authorized was not credible based on the testimony and documentary evidence
presented. Id. The administrative judge also found that the appellant’s actions
violated 18 U.S.C. § 701, which prohibits the manufacture, sale, or possession of
any “badge, identification card, or other insignia, of the design prescribed by the
head of any department or agency of the United States for use by any officer or
employee thereof, or any colorable imitation thereof . . . except as authorized
under regulations made pursuant to law[.]” RID at 9-10.
¶8 The administrative judge then found that the agency proved its charge of
conspiracy to purchase and distribute an unauthorized Federal police badge. RID
at 10-12. Specifically, the administrative judge found that the appellant did not
deny working with the former employee to order and pay for a police badge for
the former employee, which involved the appellant contacting a vendor that
produces police badges and discussing the badge design with the vendor. Id. The
administrative judge concluded that the appellant’s claim that the badge was
authorized was not credible because the settlement agreement did not au thorize
such a badge, each of the officers who possessed such a badge testified that , to
obtain one, they had to get a letter of authorization from the former Camp Parks
chief of police, and the vendor’s sales representative testified that she thought the
badge was for current police officers and would not have sold it to the appellant
and the former employee if she had known he was no longer employed. RID
at 11-12. Thus, the administrative judge found that the appellant acted in concert
with the former employee to obtain an unauthorized police badge, which violated
18 U.S.C. § 371, which prohibits two or more persons from conspiring to commit
an offense against the United States and effecting the object of the conspiracy,
and concluded that the agency had proved its second charge by preponderant
6
evidence. RID at 12. The appellant does not dispute these findings, and w e
discern no reason to disturb the administrative judge’s findings, as the recor d
reflects that the administrative judge considered the evidence as a whole, drew
appropriate inferences from the evidence, and made reasoned conclusions on the
issue of credibility. RID at 2-12; see Clay v. Department of the Army,
123 M.S.P.R. 245, ¶ 6 (2016); Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987).
The appellant has not shown that the administrative judge erred in finding the
deciding official’s testimony credible.
¶9 We next address the appellant’s claim that the administrative judge was
asleep during portions of the second hearing held in this matter , as our finding as
to this issue bears upon whether the administrative judge properly assessed the
evidence as to whether the deciding official committed perjury. On review, the
appellant submits an affidavit, and affidavits from his girlfriend and one of his
witnesses, stating that they observed the administrative judge sleeping during the
second hearing. RPFR File, Tab 3 at 25-31. The appellant did not raise the
administrative judge’s alleged inattentiveness at any point during the proceedings
below or in his written closing argument. His failure to object below precludes
him from pursuing this argument on review. See Watson v. Department of the
Treasury, 49 M.S.P.R. 237, 242 (1991) (finding that the appellant’s
representative’s failure to object to the length of the hearing sessio ns and
presentation of oral closing arguments precluded him from pursuing the
arguments on review).
¶10 Moreover, the record does not support the appellant’s claim that the
administrative judge was asleep during testimony. The appellant contends that
the administrative judge was asleep during the testimony of the proposing
official, particularly a portion of his testimony in which he testified about “taking
a telephone call from” the former Camp Parks chief of police to the deciding
official, which the administrative judge later stated that he did not hear. RPFR
7
File, Tab 3 at 21-27. There is no such testimony from the proposing official in
the record. The proposing official did testify that he “believe[d]” the former
Camp Parks chief of police had briefed the deciding official, which led to an
internal investigation of the appellant’s misconduct. Alarid v. Department of the
Army, MSPB Docket No. SF-0752-14-0256-B-1, Remand File (RF), Hearing
Transcript (HT) at 113 (testimony of the proposing official). But, the
administrative judge asked the question that elicited this testimony from the
proposing official and asked a follow-up question immediately after the proposing
official responded. HT at 113-14 (testimony of the proposing official). Thus,
contrary to the appellant’s assertions, the administrative judge was not asleep
during this testimony. Likewise, the appellant’s claim that the administrative
judge was asleep during the testimony of two other witnesses is not sufficiently
specific to warrant further discussion. RPFR File, Tab 3 at 21-24.
¶11 We also have reviewed the evidence that the appellant claims demonstrates
that the deciding official perjured himself during the course of the two hearings in
this case and find no basis on which to disturb the administrative judge’s
findings. 3 The appellant contends that the deciding official’s denial of interacting
with the former Camp Parks chief of police calls into question the credibility of
the deciding official’s denial of any anti-union bias in his decision to sustain the
removal. RPFR File, Tab 3 at 9-10. The administrative judge analyzed whether
the appellant’s participation in union activity was a contributing factor in the
removal and whether there was evidence that there was motive to retaliat e against
the appellant for his union activity. To that end, the administrative judge made
findings as to the plausibility of witness testimony that the deciding official had
3
Although the appellant and the administrative judge characterize th e allegedly
perjured testimony as depriving the appellant of due process, the appellant offered the
evidence of perjury to impeach the credibility of the deciding official. See Deleson v.
Department of the Interior, 88 M.S.P.R. 121, ¶ 6 (2001) (finding that the appellant’s
evidence that agency witnesses had perjured themselves was submitted to impeach the
credibility of the witnesses).
8
communicated with the former Camp Parks chief of police . The administrative
judge concluded that, although the deciding official was aware of the appellant’s
union activity because the appellant had informed him of such activity, there was
no evidence that the deciding official was inf luenced by the former chief of
police. RID at 17-21. The Board defers to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002). Although the Board may decline to defer
to an administrative judge’s credibility findings that are abbreviated, based on
improper considerations, or unsupported by the record, Redschlag v. Department
of the Army, 89 M.S.P.R. 589, ¶ 13 (2001), it may not overturn an administrative
judge’s demeanor-based credibility findings merely because it disagrees with
those findings, Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1372
(Fed. Cir. 2016) (quoting Haebe, 288 F.3d at 1299). Here, the administrative
judge did not discuss all of the evidence regarding whether the deciding official
and former Camp Parks chief of police communicated. However, his failure to
mention all of the evidence of record does not mean that he did not consider it in
reaching his decision. Marques v. Department of Health and Human Services,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶12 Moreover, our review of the record does not support a finding that the
administrative judge erred in finding that the deciding official’s testimony was
credible. The deciding official testified consistently during the proceedings that
he had not talked to or met the former Camp Parks chief of police. IAF, Hearing
Compact Disc (HCD) (testimony of the deciding official); HT at 116, 125-26
(testimony of the deciding official). As set forth above, the proposing official
testified that he “believe[d]” the former chief of police had briefed the deciding
official, but this testimony did not indicate that the proposing official had
first-hand knowledge of the briefing. HT at 113 (testimony of the proposing
official). The appellant has submitted additional evidence and argument
9
regarding the deciding official’s alleged perjury in his reply to the agency’s
opposition to the petition for review, but we do not consider them because they
raise new allegations of error that are outside the scope of the petition for review
and the opposition. See 5 C.F.R. § 1201.114(a)(4) (providing that a reply to a
response to a petition review is limited to the factual and legal issues raised by
another party in the response and may not raise new allegations of error).
However, a complete copy of the first exhibit attached to the appellant’s reply is
contained in the record. IAF, Tab 5 at 54-64. This document, as well as others in
the record, reflects that the former Camp Parks deputy chief of police reported
information regarding the investigation of the appellant via a military poli ce
report in August 2012. Id. at 51-64. The report is addressed to the commander
from the deciding official, and the former chief of police’s name appears in the
report as the “reporting official,” but it does not reflect that the deciding official
spoke with the former chief of police at that time. Id. at 54, 58. Additionally, the
former chief of police was placed on administrative leave on October 3, 2012,
RRF, Tab 3 at 23-24, and the deciding official became the director of emergency
services of Fort Hunter Liggett, which oversees Camp Parks, on October 26,
2012, IAF, HCD (testimony of the deciding official). Given the record evidence,
any witness testimony that the deciding official, in his capacity as director of
emergency services, spoke periodically with the former Camp Parks chief of
police, is insufficient to show that the administrative judge erred in finding the
deciding official credible.
The administrative judge properly found that the appellant did not prove his
affirmative defenses of reprisal for participation in union activity and
whistleblowing.
¶13 On review, the appellant challenges the administrative judge’s finding that
he did not prove his affirmative defenses of reprisal for participation in union
activity and whistleblowing. RPFR File, Tab 3 at 10-17. In an adverse action
appeal in which the appellant raises a prohibited personnel practice affirmative
10
defense that could independently form the basis of an individual right of action
appeal, once the agency proves its adverse action case by preponderant evidence,
the appellant must show by preponderant evidence that he made a disclosure
protected under 5 U.S.C. § 2302(b)(8) or engaged in protected activity protected
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and that the protected
disclosure or activity was a contributing factor in the agency’s personnel action .
Alarid, 122 M.S.P.R. 600, ¶¶ 12-13; Shibuya v. Department of Agriculture,
119 M.S.P.R. 537, ¶ 19 (2013). If the appellant makes both of these showings by
preponderant evidence, the burden of persuasion shifts to the agency to prove by
clear and convincing evidence that it would have taken the same personnel action
in the absence of the appellant’s protected activity. 5 U.S.C. § 1221(e)(2);
Alarid, 122 M.S.P.R. 600, ¶ 14.
¶14 On review, neither party disputes the administrative judge’s finding that the
appellant proved by preponderant evidence that he participated in union ac tivity
protected under 5 U.S.C. § 2302(b)(9)(B), and that this activity was a
contributing factor in the decision to remove him because the deciding official
became aware of the appellant’s union activity when the appellant raised it in his
reply to the proposed removal and the deciding official sustained the removal just
over 1 month later. RID at 17-20. We discern no reason to disturb the
administrative judge’s findings.
¶15 The appellant disputes that the agency proved by clear and convincing
evidence that it would have removed him absent his protected union activity. In
determining whether an agency has shown by clear and convincing evidence that
it would have taken the same personnel action absent the protected activity, the
Board will consider all of the relevant factors, including the following (“Carr
factors”): (1) The strength of the agency’s evidence in support of its action;
(2) the existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and (3) any evidence that the agency
takes similar actions against employees who did not engage in such protected
11
activity, but who are otherwise similarly situated. See Soto v. Department of
Veterans Affairs, 2022 MSPB 6, ¶ 11; see also Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 4 In assessing whether the
agency has met its burden by clear and convincing evidence, the Board must
consider all the pertinent evidence in the record, and it must not exclude or ignore
countervailing evidence by only looking at the evidence that supports the
agency’s position. See Herman v. Department of Justice, 119 M.S.P.R. 642, ¶ 15
(2013) (citing Whitmore v. Department of Labor, 680 F.3d 1353, 1367-70 (Fed.
Cir. 2012)).
¶16 The appellant challenges the administrative judge’s finding that the agency
had clear and strong evidence in support of its removal action on t he basis that
the deciding official committed perjury, which compromises his decision to
remove the appellant. RPFR File, Tab 3 at 15. However, as we have discussed
above, the record does not support a conclusion that the deciding official was not
credible. Moreover, we find that the administrative judge properly assessed the
strength of the agency’s evidence in the removal action, as he considered the
appellant’s sworn statement admitting to making at least two police identification
cards for an employee who was no longer employed by the agency, the
consistency of witness testimony and documentary evidence regarding the
procedures for producing such identification cards, and the testimony of at least
one disinterested witness and documentary evidence showing that the appellant
assisted the former employee in purchasing an unauthorized police badge. RID
at 4-12, 21.
4
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
12
¶17 The appellant also challenges the administrative judge’s finding that, while
there was evidence that the former Camp Parks chief of police and deputy chief of
police had a retaliatory motive to remove the appellant because of his union
activity, such a motive could not be imputed to the proposing and deciding
officials. RPFR File, Tab 3 at 15-17; RID at 21. The appellant contends that
witness testimony established that the proposing and deciding official s held
anti-union bias, that the deciding official was influenced by his alleged
conversations with the former Camp Parks chief of police, and that the de ciding
official knew or should have known of the union activities at Camp Parks because
the post was under his authority. RPFR File, Tab 3 at 15-17.
¶18 In applying the second Carr factor, the Board will consider any motive to
retaliate on the part of the agency official who ordered the action, as well as any
motive to retaliate on the part of other agency officials who influenced the
decision. Herman, 119 M.S.P.R. 642, ¶ 16; see Robinson v. Department of
Veterans Affairs, 923 F.3d 1004, 1019-20 (Fed. Cir. 2019) (discussing a
professional motive to retaliate when assessing the second Carr factor). We
agree with the administrative judge that there is little evidence that the deciding
official was influenced by the former Camp Parks chief of police , who was placed
on administrative leave pending his removal over 1 year before the issuance of
the decision in this matter. RID at 21. Given the intervening time period and
investigation of the appellant prior to the issuance of the proposal and decision to
remove the appellant, as well as the departure of the former Camp Parks deputy
chief of police 6 months before the issuance of the proposal and decision, the
administrative judge properly concluded that the former Camp Parks officials did
not exert influence over the proposing and deciding officials in this matter. Id.;
IAF, Tab 5 at 20-29, 38-43; HT at 86-89 (testimony of the proposing official).
Moreover, there is little evidence that the proposing and deciding officials were
aware of the particulars of the appellant’s union activity or that they were
implicated in his activity. The deciding and proposing officials’ testimony
13
reflected that, due to the organizational structure of the police units, they had
little involvement with the Camp Parks collective bargaini ng unit until the
proposing official began his duties as acting chief of police of Camp Parks , which
occurred after the appellant began administrative leave. HT at 86-93 (testimony
of the proposing official), 115-18, 130-35 (testimony of the deciding official).
Thus, we find that the administrative judge properly found that the proposing and
deciding officials had little motive to retaliate. See, e.g., Rumsey v. Department
of Justice, 120 M.S.P.R. 259, ¶ 45 (2013) (finding little evidence that the
involved official harbored retaliatory motive when the disclosures did not reflect
on him and concerned matters that largely predated his arrival at the agency).
¶19 Next, in applying the third Carr factor, when the agency fails to introduce
relevant comparator evidence, the third Carr factor is effectively removed from
consideration, although it cannot weigh in favor of the agency. See Soto,
2022 MSPB 6, ¶ 18; see also Rickel v. Department of the Navy, 31 F.4th 1358,
1365-66 (Fed. Cir. 2022) (holding that the absence of any evidence concerning
Carr factor three may well cause the agency to fail its case overall, but it will not
necessarily do so). The appellant contends that other employees who were union
stewards or filed grievances were terminated. RPFR File, Tab 3 at 17. The
administrative judge acknowledged this fact but noted that the witness who
described the terminations admitted that only one of the terminations “could have
been” retaliation, and that there is no evidence that other employees committed
similar misconduct to that of the appellant. 5 RID at 21. Our review of the record
reflects that the agency did not present any evidence regarding whether it took
similar actions against employees who were similarly situated to the appellant but
did not participate in union activity. Although the appellant’s witnesses testified
about the terminations of seven other agency employees, there was insufficient
5
In addition to opining that one employee “could have been” terminated for his union
activity, the witness also testified that another employee was unjustly terminated
because he was a union steward. HT at 13-17 (testimony of J.H.).
14
information to conclude that any of the individuals were similarly situated to the
appellant. 6 Considering the agency’s advantage in accessing this type of
evidence, we find that this factor cannot weigh in the agency’s favor. We
nevertheless are left with the firm belief that the agency would have taken the
same action absent the appellant’s protected activity based on the strength of the
agency’s evidence in support of his removal and little evidence of the proposing
and deciding officials’ motive to retaliate.
¶20 The appellant also argues that the administrative judge’s findings
concerning his affirmative defense of whistleblower reprisal is erroneous for the
reasons he set forth regarding his affirmative defense of reprisal for participation
in union activity because the administrative judge applied the same analysis to his
allegations of reprisal for whistleblowing. RPFR File, Tab 3 at 17. As set forth
above, when an appellant raises whistleblower reprisal as an affirmative defense
to an adverse action, he must prove by preponderant evidence that he made a
protected disclosure that was a contributing factor in the personnel action taken
against him. Shibuya, 119 M.S.P.R. 537, ¶¶ 19-20; see 5 U.S.C. § 1221(e)(1). To
establish that he made a protected disclosure, the appellant must show by
preponderant evidence that he disclosed information that he reasonably believed
evidenced a violation of a law, rule, or regulation, gross mismanagement, a gross
6
The appellant’s witnesses referred to most of the seven employees as police
“officer[s],” but the testimony identified two of the employees as police sergeants,
rather than police officers. HT at 13-17 (testimony of J.H.). Of the remaining five
employees, two were specifically identified as police officers, and both were terminated
for misconduct that was not similar to that of the appellant. Id. at 13-17 (testimony of
J.H.), 46-49 (testimony of M.F.), 69-70 (testimony of E.B.).
The evidence that other employees who participated in union activity were terminated
also could show a motive on the part of the proposing or deciding official to retaliate
against those who participated in union activity; however, the record does not contain
the role of the proposing or deciding official in the terminations or other information
that could support a finding of bias against participants in union activit y. See
Whitmore, 680 F.3d at 1369 (determining that it was an abuse of discretion to exclude
the testimony of a whistleblower removed from his position to the extent it could show
bias against whistleblowers).
15
waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Shibuya, 119 M.S.P.R. 537, ¶ 20; see 5 U.S.C.
§ 2308(b)(8)(A). The administrative judge found that the appellant did not
identify any protected disclosures; rather, the appellant alleged that he was
involved in filing grievances, unfair labor practice (ULP) complaints, EEO
complaints, and one complaint to the Office of Inspector General (OIG) . RID
at 23-25. The administrative judge found that the complaints that the appellant
entered into the record, consisting of two ULP complaints and one OIG
complaint, could be considered protected disclosures. RID at 23-24; RF, Tab 8
at 16-17, 19, 34-42. 7
¶21 However, the administrative judge concluded that the appellant did not
show that these disclosures were a contributing factor in his removal because the
proposing and deciding officials were not aware of the disclosures. RID at 24;
HT at 89-90 (testimony of the proposing official), 119 (testimony of the deciding
official). A protected disclosure is a contributing factor if it affects an agenc y’s
decision to take a personnel action. Dorney v. Department of the Army,
117 M.S.P.R. 480, ¶ 14 (2012). An appellant may demonstrate that a disclosure
was a contributing factor in a personnel action through circumstantial evidence,
such as evidence that the official taking the personnel action knew of the
disclosure, and that the personnel action occurred within a period of time such
that a reasonable person could conclude that the disclosure was a contributing
7
The appellant also provided one 2008 ULP that concerned reprisal for serving as a
witness regarding an unfair labor practice charge, but this does not constitute a
protected disclosure made by the appellant; rather, it is applicable to his affirmative
defense of reprisal for participation in union activity. RF, Tab 8 at 21-22. We also
note that the appellant furnished a 2008 letter he submitted to the commanding officer
of Camp Parks on behalf of the collective bargaining unit regarding working conditions
under the former Camp Parks deputy chief of police, then the chief of police, as well as
a 2010 ULP he submitted on behalf of the collective bargaining unit; however, even if
these documents could be construed as protected disclosures, the record does not reflect
that the proposing or deciding official in this case were aware of these documents. Id.
at 23, 29-31.
16
factor in the personnel action. Id.; see 5 U.S.C. § 1221(e)(1). An appellant may
also satisfy the knowledge prong of this knowledge/timing test by proving that
the official taking the action had constructive knowledge of the protected
disclosure, even if the official lacked actual knowledge. Nasuti v. Department of
State, 120 M.S.P.R. 588, ¶ 7 (2014). An appellant may establish constructive
knowledge by showing that an individual with actual knowledge of the disclosure
influenced the official accused of taking the retaliatory action. Id. The Board has
held that if an administrative judge determines that the appellant has failed to
satisfy the knowledge/timing test, he must consider other evidence, such as
evidence pertaining to the strength or weakness of the agency’s reasons for taking
the personnel action, whether the whistleblowing was personally directed at the
proposing or deciding officials, and whether these individuals had a desire or
motive to retaliate against the appellant. Dorney, 117 M.S.P.R. 480, ¶ 15. Any
weight given to a whistleblowing disclosure, eit her alone or in combination with
other factors, can satisfy the contributing factor standard. Id.¶22 On review, the appellant has not disputed the administrative judge’s
findings that the proposing and deciding officials were not aware of the protected
disclosures. The appellant generally alleged on review that the former Camp
Parks chief of police and deputy chief of police were aware of his union activity,
but as set forth above, the administrative judge did not err in finding that the
proposing and deciding officials were not influenced by the former agency
officials in this regard, and the appellant has not otherwise alleged on review that
the deciding official had constructive knowledge of the disclosures in the two
ULP complaints and one OIG complaint at issue. RPFR File, Tab 3 at 15-17.
Thus, we find no reason to disturb the administrative judge’s finding that, given
the proposing and deciding officials’ uncontroverted testimony that they were not
aware of the appellant’s ULP and OIG complaints, the appellant’s disclosures
were not a contributing factor in the removal action. Accordingly, we affirm the
17
administrative judge’s findings that the appellant did not prove his affirmative
defenses.
The administrative judge properly found that the agency proved a nexus between
the misconduct and the efficiency of the service and that the penalty was
reasonable.
¶23 The appellant argues that the agency did not prove a nexus between the
appellant’s off-duty misconduct and the efficiency of the service. RPFR File, Tab
3 at 17-21. An agency can show a nexus between off-duty misconduct and the
efficiency of the service by three means: (1) a rebuttable presumption in certain
egregious circumstances; (2) preponderant evidence that the misconduct
adversely affects the appellant’s or coworkers’ job performance or the agency’s
trust and confidence in the appellant’s job performance; or (3) prepon derant
evidence that the misconduct interfered with or adversely affected the agency’s
mission. Kruger v. Department of Justice, 32 M.S.P.R. 71, 74 (1987). Here, the
administrative judge found that the adverse effect on the efficiency of the service
was readily apparent, as the appellant was charged with the enforcement of
Federal criminal laws such as the ones that he had violated. RID at 25. The
record reflects that the appellant was a police officer, charged with upholding the
law and protecting Government property, yet he aided a former employee in
obtaining unauthorized police identification and badges , which constituted
violations of Federal law and a potential safety risk. IAF, Tab 5 at 26-27. The
deciding official observed that the appellant’s poor judgment caused him to lose
confidence that the appellant could be trusted to perform his duties in accordance
with the agency’s rules, regulations, and standards of conduct. Id. at 27. Thus,
we find that the agency established that the appellant’s misconduct adversely
affected the agency’s trust and confidence in his performance and proved by
preponderant evidence that his misconduct adversely affected the efficiency of
the service.
18
¶24 Finally, we are also unpersuaded by the appellant’s arguments that the
agency did not prove that the penalty of removal was reasonable. When, as here,
the agency’s charges are sustained, the Board will review an agency-imposed
penalty only to determine if the agency considered all of the relevant factors and
exercised management discretion within tolerable limits of reasonableness.
Adam v. U.S. Postal Service, 96 M.S.P.R. 492, ¶ 5 (2004), aff’d, 137 F. App’x
352 (Fed. Cir. 2005). The Board will modify a penalty only when it finds that the
agency failed to weigh the relevant factors or that the penalty clearly exceeded
the bounds of reasonableness. Id. The appellant appears to allege that the
penalty of removal was unreasonable because he had above-average performance
evaluations, no prior discipline, and 8 years of service; and his misconduct was
not notorious. RPFR File, Tab 3 at 19-20. The record reflects, however, that the
deciding official considered these factors, among others, but found that the
appellant’s misconduct was egregious in light of his role as a police officer and
seriously compromised his credibility and reliability to perform his duties, and
that an alternative penalty would be detrimental to the organization. IAF, Tab 5
at 26-28. Therefore, the administrative judge properly concluded that the
deciding official considered all relevant factors in his decision and that removal
was the maximum reasonable penalty.
¶25 Accordingly, the administrative judge’s remand initial decision is affirmed.
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
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.
19
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 th e 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
20
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
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,
21
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 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
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 competent jurisdiction.
22
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 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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
23
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.