Andrew Wilkerson v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW D. WILKERSON, DOCKET NUMBERS
Appellant, DA-0752-18-0216-I-1
DA-1221-18-0217-W-1
v.
DEPARTMENT OF THE ARMY,
Agency. DATE: June 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew D. Wilkerson, El Paso, Texas, pro se.
Alexandria P. Tramel and Karen Denise Haertl, Fort Worth, Texas,
Ernest A. Burford, Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s removal and denied his request for corrective action in
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
his individual right of action (IRA) appeal. 2 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 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. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant was employed by the agency as a Civil Engineer. Initial
Appeal File (IAF), 3 Tab 11 at 116. In July 2017, the appellant filed a
whistleblower reprisal complaint with the Office of Special Counsel (OSC). IAF,
Tab 34 at 53-54. In subsequent communications with OSC, he specifically
alleged that the agency took a number of personnel actions, including
2
Joinder of two or more appeals filed by the same appellant is appropriate when doing
so would expedite case processing and will not adversely affect the parties’ interests.
Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 1 n.1 (2015), overruled on
other grounds by Pridgen v. Office of Management and Budget, 2022 MSPB 31,
¶¶ 23-25; 5 C.F.R. § 1201.36(a)-(b). We find that these criteria are satisfied here, and
we therefore JOIN the two appeals.
3
Unless otherwise specified, references to the Initial Appeal File are to the file in
MSPB Docket No. DA-0752-18-0216-I-1.
3
investigating him and placing him on absence without leave (AWOL), in
retaliation for his protected disclosures. Id. at 55-56, 58.
¶3 In November 2017, while the whistleblower complaint was pending before
OSC, the agency proposed the appellant’s removal based on charges of Conduct
Unbecoming a Federal Employee (3 specifications); Making Statements (or
Sending E-mails) that Cause Anxiety and Disruption in the Workplace
(4 specifications); Insubordination (2 specifications); Making False Statements
(4 specifications); and Lack of Candor (2 specifications). IAF, Tab 11 at 96-114.
The appellant raised the proposed removal before OSC. IAF, Tab 34 at 60 -62.
¶4 By letter dated January 4, 2018, OSC informed the appel lant that it had
closed its investigation into his complaint and that he had the right to file an IRA
appeal within 65 days. IAF, Tab 34 at 114. By letter dated March 1, 2018, the
agency issued a decision removing the appellant effective the following day.
IAF, Tab 11 at 74-94. The appellant filed a Board appeal on March 1, 2018, IAF,
Tab 1, which the Board docketed separately as a chapter 75 removal appeal and
an IRA appeal. 4
¶5 After holding a hearing covering both appeals, the administrative judge
issued a single initial decision affirming the appellant’s removal and denying his
request for corrective action in his IRA appeal. IAF, Tab 122 , Initial Decision
(ID). The administrative judge found that the agency proved all three
specifications of the conduct unbecoming charge, ID at 4-13, one of the four
specifications of the charge of making statements that cause anxiety and
disruption in the workplace, ID at 14-17, and both specifications of
insubordination, ID at 17-20, but that it failed to prove its charges of making false
4
The appellant repeatedly requested that the Board stay his removal, but the
administrative judge denied those requests, finding the appellant failed to show that
there was a substantial likelihood he would prevail on the merits of his whistleblower
retaliation claim. See 5 U.S.C. § 1221(c); Wilkerson v. Department of the Army,
DA-0752-18-0216-S-3, Stay Decision (Apr. 26, 2018).
4
statements and lack of candor, ID at 20-27. He further found that the agency
established a nexus between the appellant’s proven misconduct and the efficiency
of the service, ID at 27-28, and that removal was a reasonable penalty for the
proven misconduct, ID at 28-33. The administrative judge then addressed the
appellant’s claims of reprisal for protected disclosures and activities in
connection with both the removal and the personnel actions raised in his IRA
appeal. The administrative judge found that the appellant proved that he engaged
in protected whistleblowing activity when he filed a prior IRA appeal, shared
information with a member of Congress, disclosed alleged contracting
improprieties to agency investigators, and disclosed information to OSC. ID
at 35-42. The administrative judge further found that the appellant established
that his protected whistleblowing was a contributing factor in a June 2017 letter
of reprimand, the proposal and decision to remove him, his plac ement on AWOL
for several days in June and July 2017, and his placement on full-time telework.
ID at 43-49. However, the administrative judge found that the appellant failed to
establish that the agency subjected him to a hostile work environment . ID
at 47-48. 5 For those protected activities that the appellant proved were a
contributing factor in personnel actions, the administrative judge found that the
agency proved by clear and convincing evidence that it would have taken the
same actions absent the appellant’s protected whistleblowing. ID at 50 -62.
¶6 The appellant has filed identical petitions for review in both appeals.
Petition for Review (PFR) File, Tab 2. He accuses agency officials of a variety of
criminal acts and other misconduct. Id. at 4-5. He also makes a number of
5
The administrative judge considered the appellant’s claim that the agency retaliated
against him by investigating him, but he found that an investigation per se is not a
personnel action. ID at 49-50. However, the administrative judge considered the
appellant’s claims regarding the investigation in evaluating whether the agency proved
by clear and convincing evidence that it would have taken the actions resulting from
that investigation (i.e., the proposed removal and removal decision) in the absence of
his protected whistleblowing. ID at 49-50, 56-58.
5
factual assertions without reference to the record. Id. at 16-26. The appellant
alleges that the agency improperly withheld information during discovery and that
the administrative judge committed harmful procedural error. Id. at 29. The
agency has filed a response, PFR File, Tab 4, and the appellant has filed a reply,
PFR File, Tab 5.
¶7 A petition for review states a party’s objections to the initial decision,
including all of the party’s legal and factual arguments, and must be supported by
references to applicable laws or regulations and by specific references to the
record. See 5 C.F.R. § 1201.114(b). A petition for review must contain sufficient
specificity to enable the Board to ascertain whether there is a serious evidentiary
challenge justifying a complete review of the record. Tines v. Department of the
Air Force, 56 M.S.P.R. 90, 92 (1992). Before the Board will undertake a
complete review of the record, the petitioning party must explain why the
challenged factual determination is incorrect and identify the specific evidence in
the record that demonstrates the error. Weaver v. Department of the Navy,
2 M.S.P.R. 129, 133 (1980). The Board will not disturb an administrative judge’s
findings when he considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility. Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of
Health and Human Services, 33 M.S.P.R. 357, 359 (1987).
¶8 The appellant’s arguments on petition for review do not meet the Board’s
standard for review. His allegations of criminal conduct lack evidentiary support
and he fails to explain how those matters relate to the issues before the Board in
these appeals. Likewise, although he appears to challenge some of the
administrative judge’s factual findings and credibility determinations, he fails to
identify the specific evidence that supports his position. We find no reason to
disturb the administrative judge’s well-reasoned findings and credibility
determinations.
6
¶9 The appellant’s arguments regarding alleged procedural error also do not
warrant reversing the initial decision. Even if we were to accept as true the
appellant’s bare assertion that the administrative judge told the appellant he could
not award corrective action, PFR File, Tab 2 at 29, the appellant has not shown
how that statement affected his rights. See Karapinka v. Department of Energy,
6 M.S.P.R. 124, 127 (1981) (the administrative judge’s procedural error is of no
legal consequence unless it is shown to have adversely affected a party’s
substantive rights).
¶10 Finally, we find that the appellant’s arguments regarding discovery do not
provide a basis for reversing the initial decision. The administrative judge denied
the appellant’s motion to compel discovery as untimely filed. IAF, Tab 92. The
appellant has not explained how the administrative judge erred in that ruling, and
we see no reason to disturb it. See McCarthy v. International Boundary and
Water Commission: U.S. and Mexico, 116 M.S.P.R. 594, ¶ 15 (2011) (an
administrative judge has broad discretion in ruling on discovery matters and,
absent a showing of abuse of discretion, the Board will not find reversible error in
such rulings), aff’d, 497 F. App’x 4 (Fed.Cir.2012).
¶11 We have considered the appellant’s remaining arguments on review, and we
find that they do not warrant reversal of the initial decision.
NOTICE OF APPEAL RIGHTS 6
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
6
Since the issuance of the initial decision in this matter, the Boar d 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.
7
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 t o 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
8
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 obt ain
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. 420 (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
9
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. 7 The court of appeals must receive your petition for
7
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.
10
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.
11
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.