Jerome Johnson v. Department of the Navy ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEROME W. JOHNSON, DOCKET NUMBER
Appellant, DC-0752-16-0064-I-1
v.
DEPARTMENT OF THE NAVY, DATE: April 14, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kevin McCants, Washington, D.C., for the appellant.
Robert Howard Walton, Norfolk, Virginia, 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 initial decision, which
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as expressly MODIFIED by
this Final Order to find it unnecessary to make a determination regarding whether
the agency proved its charge of absence without leave (AWOL) , and to VACATE
the administrative judge’s alternative finding regarding the appellant’s
whistleblower reprisal affirmative defense, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was employed by the agency’s Naval Supply Systems
Command (NAVSUP) as a Postal Supervisor, domiciled at a Naval District
Washington (NDW) installation. Initial Appeal File (IAF), Tab 7 at 51, 95. On
April 2, 2015, he called the Veterans Administration (VA) Crisis Hotline and
made a reference to the Washington Navy Yard shooting (in which 13 people
were killed on September 16, 2013). Id. at 45, 53. According to the VA
responder who took the appellant’s call, the appellant also threatened to kill
several people and then commit suicide. Id. at 53. Individuals from the Crisis
Hotline contacted the NDW and the appellant’s supervisor regarding the
appellant’s statements. Id. at 63-64. As a result of safety concerns raised by the
statements, the commanding officer of the NDW installation where the appellant
3
worked issued the appellant a debarment letter and NDW officers escorted him
out of his work location the same day. Id. at 64.
¶3 The appellant’s third-level supervisor placed the appellant on paid
administrative leave from April 3 to June 26, 2015. IAF, Tab 7 at 79, 81-83, 86,
Tab 27, Hearing Compact Disc (HCD) (testimony of the appellant’s third -level
supervisor); Petition for Review (PFR) File, Tab 6 at 89-90. On April 7, 2015,
the NDW issued the appellant another letter, barring him from all NDW
installations, including the one where he worked. IAF, Tab 7 at 76-77. The
appellant appealed that barment order to the NDW Commandant, and his appeal
was denied. Id. at 70-74.
¶4 On June 12, 2015, the appellant’s third-level supervisor warned the
appellant that unless he was “able to resolve [his] barment from naval
installations, enabling [him] to legally access [his] appointed place of work, [he
would] be placed in an [AWOL] status” beginning June 29, 2015. Id. at 79. The
appellant took annual leave from June 29 to July 23, 2015. PFR File, Tab 6 at 89;
IAF, Tab 7 at 86. From July 24 to September 25, 2015, the agency designated the
appellant’s leave status as AWOL. PFR File, Tab 6 at 88; IAF, Tab 7 at 86.
¶5 On September 25, 2015, the agency removed the appellant from the Federal
service. IAF, Tab 7 at 51. The removal was based on one ch arge of making
statements that resulted in disruption and anxiety in the workplace and one charge
of being AWOL. Id. at 29-31.
¶6 The appellant timely filed an appeal with the Board. IAF, Tab 1. The
administrative judge held the appellant’s requested heari ng. HCD. In her initial
decision, the administrative judge sustained the agency’s charges, found that the
appellant failed to prove his affirmative defenses of reprisal for making a
protected disclosure or retaliation for engaging in the Equal Employment
Opportunity (EEO) process, found that the agency proved nexus , and concluded
that the agency-imposed penalty of removal was within the bounds of
reasonableness. IAF, Tab 28, Initial Decision (ID) at 10-22.
4
¶7 The appellant has filed a petition for review, and the agency has filed a
response opposing the petition. 3 PFR File, Tabs 1, 3. The Office of the Clerk of
the Board ordered the parties to file evidence and argument addressing the
appellant’s employment relationship to the NDW. PFR File, Tab 5. The agency
has submitted a response, and the appellant has replied. PFR File, Tabs 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the charge of making statements that
resulted in disruption and anxiety in the workplace.
¶8 The administrative judge found that the agency met its burden to prove the
charge of making statements that resulted in anxiety and disruption in the
workplace. ID at 6-7, 13. We agree.
¶9 In making her determination, the administrative judge credited the
testimony of the Crisis Hotline responder that the appellant referenced the Navy
Yard shooting during his call and indicated that if the responder thought that that
was bad, the appellant was going to take out a number of people and commit
suicide. ID at 13; IAF, Tab 7 at 30, 53. The administrative judge found that, as a
result of the appellant’s statements, his first-level supervisor experienced anxiety,
his third-level supervisor reported to work on his day off, and NDW police
intervened and escorted the appellant from his work location, ID at 13; IAF,
Tab 7 at 30-31. See Gray v. Government Printing Office, 111 M.S.P.R. 184, ¶¶ 2,
3
In his petition for review, the appellant does not challenge the administrative judge’s
finding that he failed to prove that the agency removed him because of his prior EEO
activities. PFR File, Tab 1; ID at 18-19. Nor does the appellant seem to challenge the
administrative judge’s finding that he failed to prove his affirmative defense of reprisal
for making a protected disclosure. PFR File, Tab 1; ID at 16-18. Because the
administrative judge found that the appellant failed to prove that he made a protected
disclosure, we vacate her alternative finding that the agency proved by clear and
convincing evidence that it would have removed the appellant in the absence of his
alleged protected disclosure, ID at 16-17. Scoggins v. Department of the Army,
123 M.S.P.R. 592, ¶ 28 (2016). We otherwise discern no basis to disturb her findings
regarding these affirmative defenses. Further, we have reviewed the relevant legislation
enacted during the pendency of this appeal and find that none impact the outcome.
5
5-6, 16 (2009) (finding that an agency proved a charge of disruption in the
workplace and because the appellant’s statements, including that he “might do
something bad” to his supervisor, was “going to kill him with a machete, ” and
was going to “cut . . . him to pieces,” caused anxiety to those who overheard
them).
¶10 On review, the appellant argues that the administrative judge erred by
“accepting testimony from” the responder who received the appellant’s call to the
VA Crisis Hotline because he violated N.Y. Mental Hyg. Law § 9.46. PFR File,
Tab 1 at 4. That law requires any “mental health professional” to report to certain
authorities when he reasonably determines that a person he is treating is likely to
cause serious harm to himself or others. N.Y. Mental Hyg. Law § 9.46. First, it
is not clear that the responder is a mental health professional under the statute,
and indeed the appellant argues that he is not. PFR File, Tab 1 at 4. Thus, the
appellant has failed to show that the statute applies to the responder. Second,
assuming that the responder violated the statute, the appellant has failed to
explain why that would be cause for prohibiting his testimony. Id. Accordingly,
we find the appellant’s argument unpersuasive. 4 To the extent that the appellant
is seeking to assert a psychotherapist-patient privilege, we decline to find that any
such privilege was violated. PFR File, Tab 1 at 4-5; IAF, Tab 14 at 4. The
appellant was specifically cautioned by the counselor that his statements might
trigger a duty to warn, yet he continued to make them. IAF, Tab 7 at 30, 53 -54,
93; ID at 13; see Gray, 111 M.S.P.R. 184, ¶ 10 (explaining that whether an
4
Although the appellant did not raise this argument below, we have considered it for
the first time on review because it is closely related to his argument below that st aff at
the Crisis Hotline violated the statute by reporting his telephone call to the agency.
IAF, Tab 14 at 2-4; see Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980) (observing that the Board will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence). The appellant has not
re-raised this argument on review.
6
appellant is aware his statements might not be kept confidential is a factor in
determining whether they are covered by a psychotherapist -patient privilege).
¶11 The appellant challenges the administrative judge’s finding that the Crisis
Hotline responder was credible. PFR File, Tab 1 at 4-5; ID at 11-13. In making
this finding, the administrative judge considered the relevant factors used to
assess credibility. Id. (citing Hillen v. Department of the Army, 35 M.S.P.R. 453,
458 (1987) (listing factors to be considered in making credibility
determinations)). In crediting the responder, the administrative judge found that
he was unbiased. ID at 12-13. She also found that the appellant’s testimony that
he was calm when he made the hotline call was inherently improbable in light of
his recent reassignment and harassment charges pending against him . Id.; IAF,
Tab 7 at 63.
¶12 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). We find no
sufficiently sound reasons here. The appellant argues that the administrative
judge failed to consider that the responder read from his notes and talked to his
supervisor during the hearing. PFR File, Tab 1 at 4. The appellant also asserts
that the responder made inconsistent statements on April 2, 2015, regarding
whether the appellant threatened to “kill his supervisor” or “take out several
people.” Id. at 5. Finally, he argues that the responder testified that the hotline
call lasted only 10 minutes, contradicting the responder’s earlier statement to the
agency that the call was 35-40 minutes. Id.; IAF, Tab 7 at 53.
¶13 As to the length of the call, we decline to disturb the administrative judge’s
finding that the responder’s error regarding the length of the call in his earlier
statement to the agency did not significantly undermine his credibility. ID at 7-8,
12 n.1; see Broughton v. Department of Health and Human Services, 33 M.S.P.R.
7357, 359 (1987) (observing that mere reargument of factual issues already raised
and properly resolved by the administrative judge below do not establish a basis
for review). As to the responder’s alleged referral to his notes during the hearing,
the appellant appears to misunderstand the hearing process. PFR File, Tab 1 at 5.
Although the responder initially looked at his prior statement to the agency while
testifying, the administrative judge requested that he testify from his memory, and
he proceeded to do so. 5 HCD (testimony of the responder). We also do not agree
that the responder’s statements were inherently incons istent, as alleged by the
appellant. PFR File, Tab 1 at 5. The responder consistently stated, as charged by
the agency, that the appellant referenced the Navy Yard shooting and said he was
going to take several people out and then commit suicide. HCD (testimony of the
responder); IAF, Tab 7 at 30, 53, 63-64.
¶14 The appellant contends that the administrative judge also erred in
concluding that the responder stated that he left voicemail messages for the
appellant because the responder testified that he did not know the appellant’s
telephone number. PFR File, Tab 1 at 5. In fact, the administrative judge found
that the responder stated that he did not leave a voicemail message for the
appellant. ID at 7. Accordingly, we find the appellant’s argument unav ailing.
We find it unnecessary to make a determination regarding the AWOL charge .
¶15 The appellant further alleges that the administrative judge “erred by not
recognizing his forced leave” while the agency investigated his alleged
5
As to the allegation that the responder spoke with his supervisor at some point during
the proceedings, we have been unable to discern whether such conversations occurred
on the record. PFR File, Tab 1 at 5. Further, the appellant has not alleged any
improprieties in any such discussion. Therefore, we decline to consider this argument
further. See Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92 (1992)
(explaining that a petition for review must contain sufficient specificity to enable the
Board to ascertain whether there is a serious evidentiary challenge j ustifying a complete
review of the record); Marques v. Department of Health and Human Services,
22 M.S.P.R. 129, 132 (1984) (declining to find that the presiding official’s failure to
mention all of the evidence meant that she did not consider it), aff’d, 776 F.2d 1062(Fed. Cir. 1985) (Table).
8
misconduct. 6 PFR File, Tab 1 at 5; ID at 14. We interpret this assertion as an
argument that the administrative judge erred in sustaining the AWOL charge.
Because the first charge regarding the appellant’s statements to the responder is
sufficient to sustain his removal, we find it unnecessary to reach this issue of
whether the agency proved its AWOL charge. See Gray, 111 M.S.P.R. 184, ¶ 17
(finding it unnecessary to address the appellant’s arguments as to one of the
charges because the other sustained charges warranted the penalty of removal).
Because we do not address this charge, it is appropriate for purposes of assessing
the penalty to treat this as a case in which not all charges are sustained . Id.The penalty of removal is within the bounds of reasonableness based on the
sustained charge.
¶16 When an agency proves fewer than all of its charges, the Board may
mitigate to the maximum reasonable penalty so long as the agency has not
indicated either in its final decision or during proceedings before the Board that it
desires that a lesser penalty be imposed on fewer charges. Gray, 111 M.S.P.R.
184, ¶ 18. The Board may impose the same penalty imposed by the agency based
on a justification of that penalty as the maximum reasonable penalty after
balancing the mitigating factors. Id.; see Robinson v. Department of Veterans
Affairs, 923 F.3d 1004, 1016-17 (Fed. Cir. 2019) (stating that in an appeal where
not all of the charges are sustained, “the Board functions to determine whether or
not the agency’s penalty selection was reasonable in light of the sustained
charge[]”).
¶17 In his decision notice, the deciding official stated that he believed each
charge, standing alone, was sufficient to warrant the appellant’s removal. IAF,
Tab 7 at 22. The deciding official came to this conclusion after considering all of
the appropriate factors. Id. at 19-27; see Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of factors relevant
6
To the extent that the appellant is raising an enforced leave claim for the first time on
review, we decline to consider it. See Banks, 4 M.S.P.R. at 271.
9
to determining the appropriateness of a penalty for misconduct). Beyond his
dispute of the charges, the appellant did not make any argument regarding
mitigation, either below or on review. ID at 22; PFR File, Tab 1.
¶18 We agree with the deciding official that the appellant’s sustained conduct of
making statements that resulted in anxiety and disruption in the workplace was
serious. IAF, Tab 7 at 21; see Gray, 111 M.S.P.R. 184, ¶¶ 11, 19-21 (finding that
charges of making statements that caused anxiety and disruption in the workplace
and using racially inappropriate language were sufficient to sustain a removal);
Stoddard v. Department of the Army, 109 M.S.P.R. 199, ¶¶ 2, 10 (2008) (finding
removal an appropriate penalty for an appellant charged with creating a
disturbance by implying he would inflict bodily harm on his supervisor and
coworkers). The deciding official found that removal was within the
recommended range of penalties for the sustained charge and was consistent with
the agency’s growing concern with preventing workplace violence. IAF, Tab 7
at 22. Further, he considered the appellant’s 5 years of service and acceptable
performance. Id. at 21. Nonetheless, in light of the seriousness of the charge, he
found that removal was appropriate. Id. at 22. We therefore find that the
deciding official considered the Douglas factors most relevant to this case and
that the agency reasonably exercised its management discretion. Accordingly, we
find that the penalty of removal is within the tolerable limits of reasonableness
for the charge of making statements that resulted in disruption and anxiety in the
workplace.
We decline to address the appellant’s arguments regarding his individual right of
action (IRA) appeal.
¶19 Finally, the appellant previously filed an IRA appeal, which the
administrative judge dismissed as untimely filed. Johnson v. Department of the
Navy, MSPB Docket No. DC-1221-16-0122-W-1, Initial Decision at 1 (Oct. 5,
2016). That decision became final after neither party filed a timely p etition for
review. In filing his petition for review, the appellant appears to challenge this
10
determination. PFR File, Tab 1 at 4, 6. The Office of the Clerk of the Board
provided him the opportunity to clarify whether he intended to file a petition for
review in his IRA appeal. PFR File, Tab 4. The appellant was informed that if he
failed to do so, the Board might assume that he did not intend to file a petition for
review of his IRA appeal. Id. at 2. The appellant failed to respond to the Office
of the Clerk of the Board’s order. Accordingly, we decline to address the
appellant’s assertions appearing to relate to his IRA appeal. PFR File, Tab 1
at 4, 6.
¶20 Accordingly, we affirm the initial decision sustaining the appellant’s
removal, as modified herein.
NOTICE OF APPEAL RIGHTS 7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You 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 you r 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 yo ur
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.
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
Please read carefully each of the three main possible choices of revi ew
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
12
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 challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in secti on
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).
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
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.
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.