Jean Nsima v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEAN F. NSIMA, DOCKET NUMBER
Appellant, NY-0752-16-0244-I-1
v.
DEPARTMENT OF HOMELAND DATE: March 1, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lawrence Tomscha , New York, New York, for the appellant.
David M. Burns , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his 40-day suspension. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 to analyze the appellant’s allegations of discrimination and
retaliation for filing equal employment opportunity (EEO) complaints, we
AFFIRM the initial decision.
BACKGROUND
The appellant is a Personnel Security Specialist for the agency’s Federal
Protective Service (FPS). Initial Appeal File (IAF), Tab 6 at 41, 332. In
March 2012, a female coworker began working in the same office as the appellant
as a probationary Budget Analyst. IAF, Tab 8 at 58. The appellant approached
this coworker during her first month of employment and made a number of
statements as to the relative strength of his position in comparison to hers. IAF,
Tab 6 at 333, Tab 8 at 59-60, Tab 9 at 122. For example, he advised her that the
agency did not want to hire her but he persuaded management to do so, that he
had a strong connection with upper management, that his coworker was in a
surplus position, and that she was probationary. IAF, Tab 6 at 333, Tab 8
at 59-60. Between March and July 2012, the appellant kissed his coworker on the
back of her hand three to five times, although she informed him she was married
and did not “appreciate his actions.” Id.; IAF, Tab 9 at 122. He also placed his
palm on her thigh on at least one occasion. IAF, Tab 6 at 333, Tab 9 at 62, Tab 9
at 122-23. When his coworker attempted to push the appellant’s hand away, he
3
leaned toward her in what she believed was an attempt to kiss her cheek. IAF,
Tab 6 at 333, Tab 9 at 122. However, she blocked him with her hand when he
was within two inches of her face. IAF, Tab 6 at 333, Tab 9 at 122.
When her probationary period ended, the appellant’s coworker reported the
appellant’s conduct to the agency and he was moved to a different floor. IAF,
Tab 8 at 62-63, Tab 9 at 123. This appears to have been the end of the matter
until the appellant confronted his coworker again on August 1, 2013, at her
cubicle, pointed at her, and loudly accused her of “play[ing] games.” IAF, Tab 8
at 55-56, 64, Tab 9 at 332-33. The appellant’s coworker immediately reported
the incident to a manager.
In the meantime, on June 26, 2013, the appellant called his second-line
supervisor to complain about the fact that his first-line supervisor was walking
past his cubicle. IAF, Tab 6 at 333, Tab 7 at 10. During this conversation, the
appellant stated in an elevated voice, “[I]f he comes by here again I am going to
do something physically.” IAF, Tab 7 at 10.
The agency’s Office of Compliance and Security, Internal Affairs Division,
investigated allegations by and against the appellant, including the allegations
discussed above. IAF, Tab 6 at 341, Tab 8 at 37-38, Tab 9 at 124-25. In the
course of these investigations, two Internal Affairs Senior Special Agents
attempted to interview the appellant in July and October 2013. IAF, Tab 6
at 333-34, Tab 7 at 28-31, Tab 9 at 83. However, the appellant appeared for his
two initial interviews, both scheduled for July 11, 2013, with an individual who
presented himself as the appellant’s union representative. IAF, Tab 7 at 29-30.
When the Senior Special Agent present questioned why the appellant, who was
not in a bargaining unit, had a union representative, the appellant left the
interview without participating. IAF, Tab 6 at 333-34, Tab 7 at 30, Tab 9 at 5.
An additional interview was scheduled for October 29, 2013. IAF, Tab 9 at 83.
However, after a break in the interview, the appellant refused to complete a
written affidavit as instructed. IAF, Tab 6 at 334.
4
The agency proposed to suspend the appellant for 45 days based on the
following charges: (1) inappropriate conduct as it concerned the appellant’s
behavior toward his female coworker and his statement that he would do
something physically to his first-line supervisor; and (2) his failure to cooperate
in the agency’s investigations, as discussed above. Id. at 332-38. The appellant,
through his representative, presented oral and written replies to the proposed
suspension. Id. at 74-110. After considering the appellant’s replies, the deciding
official upheld all the charges as specified but mitigated the penalty to a 40 -day
suspension, effective August 10, 2015. Id. at 41, 63-69.
The appellant challenged the action by filing a formal equal employment
opportunity (EEO) complaint. Id. at 24. After the issuance of a final agency
decision finding no discrimination or retaliation, the appellant filed a Board
appeal and requested a hearing. IAF, Tab 1 at 2, Tab 6 at 28. On appeal, the
appellant claimed that his suspension was the result of retaliation for engaging in
EEO activity and resulted from harmful procedural error. IAF, Tab 1 at 5, Tab 43
at 2. He also alleged that the agency’s action was barred by the doctrine of
laches. IAF, Tab 87, Initial Decision (ID) at 3. The appellant failed to respond to
some of the administrative judge’s orders or to timely answer the agency’s
discovery requests. IAF, Tab 28. Therefore, the administrative judge prohibited
him from presenting evidence and testimony on his affirmative defenses, other
than his own testimony. Id.After the 6-day hearing concluded, the administrative judge issued an
initial decision in which she sustained all specifications of both charges, found
nexus between the misconduct and the efficiency of the service, and upheld the
reasonableness of the penalty. ID at 1-2, 4-26, 38. She found that the appellant
failed to prove any of his affirmative defenses or his claim of laches. ID
at 26-31. The appellant filed a petition for review challenging the administrative
judge’s findings, and the agency responded in opposition. Petition for Review
(PFR) File, Tabs 1, 5.
5
ANALYSIS
The administrative judge correctly sustained the charge of inappropriate conduct.
The charge of inappropriate conduct was based on five specifications
(A-E), all of which the administrative judge sustained. With the exception of
specification B, the specifications were based on the following allegations: the
appellant made statements suggesting he had authority over his female
coworker’s continued employment and touched (and attempted to touch) her
inappropriately on several occasions in 2012; and he made comments and
engaged in unprofessional conduct on August 1, 2013, which she perceived as
threatening. In specification B, the agency alleged that, on June 26, 2013, the
appellant called his second-line supervisor and yelled that he was going to “do
something physically” if his first-line supervisor walked past his cubicle again.
IAF, Tab 6 at 333.
The agency has the burden of proving its charges by preponderant
evidence. 5 C.F.R. § 1201.56(b)(1)(ii). To prove a charge of inappropriate
conduct, the agency is required to demonstrate that the appellant engaged in the
underlying conduct alleged in support of the broad label. See generally Raco v.
Social Security Administration, 117 M.S.P.R. 1, ¶ 7 (2011) (setting forth the
criteria for proving conduct unbecoming a Federal employee); Parbs v. U.S.
Postal Service, 107 M.S.P.R. 559, ¶ 8 (2007) (stating the same criteria for
proving improper conduct), aff’d per curiam, 301 F. App’x 923 (Fed. Cir. 2008).
Although the appellant suggests that the agency was required to prove that he
harassed his coworker, he is mistaken. PFR File, Tab 1 at 13-14. The agency
here charged the appellant with inappropriate conduct, not harassment. IAF, Tab
6 at 332. It was not required to prove that the appellant’s conduct was
harassment, even if the proposed suspension described his misconduct as
harassing, which it did not. Id. at 332-33; see Otero v. U.S. Postal Service,
73 M.S.P.R. 198, 201, 203-04 (1997) (finding that an agency that removed an
appellant for the charge of improper conduct was not required to meet the higher
6
burden of proving he made a “threat,” despite describing his conduct as
“threatening” in its proposed removal; rather, it only was required to prove the
elements of a charge of improper conduct).
In her initial decision sustaining all specifications of the charged
misconduct, the administrative judge thoroughly addressed the record evidence,
including the hearing testimony, and provided a detailed explanation for why she
found the agency witnesses’ version of events was credible and the appellant’s
was not. ID at 3-38. In making her credibility determinations, the administrative
judge relied on the factors set forth in Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987), including witness demeanor. ID at 4-36. In Hillen,
the Board found that, in assessing a witness’s credibility, an administrative judge
should consider factors such as any prior inconsistent statement by the witness,
the contradiction of the witness’s version of events by other evidence or its
consistency with other evidence, and the witness’s demeanor. Hillen,
35 M.S.P.R. at 458. 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, and 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).
The administrative judge found that the appellant’s female coworker’s
testimony about his inappropriate conduct specified in charge 1 was coherent,
supported by her contemporaneous statements to a colleague, and consistent with
her 2013 affidavit and what she reported to management. 2 ID at 4-7, 11-16. The
2
The appellant disputes the administrative judge’s finding that he “did not deny having
kissed” his coworker’s hand. PFR File, Tab 1 at 11; ID at 13. We agree that this
finding was in error. The appellant stated at one point during the hearing that he “never
kissed his coworker.” September 20, 2016 Hearing Transcript at 226 (testimony of the
appellant). However, we decline to find that this error was harmful to the decision
because the appellant later testified that “if the woman allow[s] you to kiss her hand and
then she didn’t report that, that means . . . nothing happened.” Id. at 244. Further, the
administrative judge recognized in her initial decision that the appellant generally
denied all allegations of misconduct. ID at 4-7, 11-16.
7
administrative judge also found that the appellant’s first-line and second-line
supervisors kept contemporaneous records documenting the appellant’s
unprofessional conduct during the telephone conversation with his second-line
supervisor referenced in charge 1, and their testimony was consistent with those
records. ID at 10.
The appellant disagrees with the administrative judge’s reliance on his
female coworker’s prior consistent statements and corroborating evidence as
supporting her credibility. For example, he argues that the administrative judge
should not have considered that his coworker made prior consistent statements to
third parties as to the appellant’s misconduct. PFR File, Tab 1 at 8, 11; ID
at 5, 7, 13-14. In considering these statements as weighing in favor of the
credibility of the appellant’s coworker, the administrative judge properly carried
out her obligation under Hillen. Thus, we discern no error. See Parbs,
107 M.S.P.R. 559, ¶ 16 (finding the consistency of a witness’s two statements
supported the credibility of those statements). To the extent that the appellant
alleges that the corroborating evidence or testimony was hearsay, we find nothing
improper in the administrative judge’s consideration of this evidence. PFR File,
Tab 1 at 12; ID at 5, 7, 13-14; see Shannon v. Department of Veterans Affairs,
121 M.S.P.R. 221, ¶¶ 3, 14-17 (2014) (observing that hearsay evidence is
admissible in Board proceedings, and finding that an administrative judge
properly considered hearsay evidence to corroborate that the appellant engaged in
the misconduct underlying her removal).
The appellant also raises a number of challenges to the administrative
judge’s demeanor-based credibility findings. For example, he argues that
management spent years trying to frame him and mischaracterized his words.
PFR File, Tab 1 at 2-3, 6-11, 13-15. He argues that, after his female coworker
discovered that management was plotting against him, she accused him of
threatening behavior and making sexual advances to further her career. Id.
at 6, 14-15. He disagrees with the administrative judge’s finding that his
8
coworker credibly testified that she felt threatened when he told her that the
agency originally did not want to hire her and he had a strong connection with
upper management, and reminded her that she was probationary. 3 ID at 15-16;
PFR File, Tab 1 at 12, 14-15. The appellant also argues that no reasonable person
would believe that he could get physical, as he allegedly threatened to do with his
first-line supervisor, because he wears a leg brace and uses a cane to walk. PFR
File, Tab 1 at 6, 9. The administrative judge found unbelievable the appellant’s
denials and his argument that he was physically incapable of engaging in the
misconduct specified in charge 1. ID at 6-7, 10-11, 15-16. We find that the
appellant’s arguments on review challenging the credibility of the agency’s
witnesses and the administrative judge’s weighing of the evidence are insufficient
to cause us to disturb the administrative judge’s well -reasoned findings. 4
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility).
On review, the appellant also reasserts his argument that the doctrine of
laches bars the agency from taking any action against him based on the alleged
inappropriate conduct in 2012 concerning his female coworker. PFR File, Tab 1
3
Further, the appellant asserts that “a lawyer turned FPS agent” urged his female
coworker to request an order of protection and/or to file a police report. PFR File,
Tab 1 at 14. However, this fact was not mentioned in the agency’s proposed
suspension, suspension decision, or the initial decision. IAF, Tab 6 at 63-73, 332-38;
ID. Thus, we do not find it relevant to whether the agency met its burden to prove the
charges or penalty.
4
As other examples of his disagreement with the administrative judge’s credibility
findings, the appellant asserts that his coworker’s testimony about his behavior towards
her was inconsistent with her prior statements and inherently improbable. PFR File,
Tab 1 at 13-15. He asserts that his female coworker’s testimony shows that he did not
make her uncomfortable, and that he taught her French and they had a “cozy”
relationship. Id. at 12-13. He also suggests that she lacked credibility because she did
not document some of the incidents when they occurred although she testified that her
friend told her to do so. Id. at 15. We similarly find these arguments unpersuasive.
9
at 10-13. The equitable defense of laches bars an action when an unreasonable
delay in bringing the action has prejudiced the party against whom the action is
taken. Johnson v. U.S. Postal Service, 121 M.S.P.R. 101, ¶ 6 (2014). The party
asserting laches must prove both unreasonable delay and prejudice. Id. The
administrative judge found that the agency’s delay in bringing the charge was not
unreasonable or prejudicial to the appellant’s defense. ID at 34-36.
The appellant challenges both of these findings. PFR File, Tab 1 at 10-11.
However, he points to no specific evidence to suggest he was prejudiced by the
delay. Instead, he speculates that he “may not have been in the office” when he
allegedly kissed his coworker on the hand. Id. at 11. Absent any specific
evidence that the appellant sought and was improperly denied attendance
information, we cannot presume that the 2 1/2 to 3 year delay between the alleged
incidents and the issuance of the proposed suspension prevented him from
arguing that he was not at work. See Mercer v. Department of Health and Human
Services, 82 M.S.P.R. 211, ¶ 12 (1999) (declining to presume that an agency was
prejudiced when an appellant did not file an Office of Special Counsel complaint
until approximately 3 years and 9 months after her termination).
The administrative judge correctly sustained the charge of failure to cooperate in
an agency investigation.
The administrative judge found that the agency met its burden of proving
that the appellant failed to cooperate in an agency investigation and that the facts
underlying the specifications were largely uncontested. ID at 17, 23. On review,
the appellant does not dispute the conduct underlying this charge. For example,
the appellant does not dispute that, on July 11, 2013, he walked out of his
scheduled interviews with Senior Special Agents. ID at 22. The appellant also
does not dispute that he refused to provide a written affidavit following his oral
testimony on October 29, 2013. ID at 24. Instead, he argues that he felt
intimidated by the agents and nothing prevented him from bringing a
10
representative. PFR File, Tab 1 at 16-17. Accordingly, we discern no reason to
disturb the administrative judge’s finding that the agency proved this charge.
The appellant did not establish that the agency committed harmful error.
For the first time on review, the appellant argues that the scope of the
agency’s investigation and the voluminous evidence produced against him
constituted an abuse of authority and excessive waste of Government resources,
which violated his constitutional right to due process and his right under the
Fourteenth Amendment of the U.S. Constitution to protection from Governmental
abuse of authority. PFR File, Tab 1 at 4-5, 9, 13-14; IAF, Tab 43 at 1-2. He
contends that the agency denied him due process by failing to submit evidence in
an accessible format and by using three numbering systems in the agency file,
which made it impossible for him to easily find and cite documents. PFR File,
Tab 1 at 6. He also argues that the agency denied his right to due process by
charging him with misconduct that allegedly occurred in 2012. Id. at 11.
The appellant did not make a due process argument on appeal, and the
Board generally 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. IAF, Tab 43 at 1-2;
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant
has not made that showing here. Although the Board will not consider the due
process claims that the appellant raised for the first time on review, the Board
will consider the claims of harmful error that he made on appeal and reasserts on
review.
The appellant reasserts some of the harmful error claims that he raised on
appeal. 5 PFR File, Tab 1 at 9, 14, 16-17; IAF, Tab 43 at 2. The Board will
5
The appellant appears to withdraw his affirmative defense that the agency failed to
properly process EEO claims concerning prior discipline. ID at 33; PFR File, Tab 1
at 18. The administrative judge found that the agency did not refuse to process these
claims, as alleged. ID at 33. Instead, it recommended that the appellant amend an
existing EEO complaint to include them. Id. Even assuming the appellant is
challenging this well-reasoned finding on review, he does not explain why he believes it
11
reverse an action taken by an agency if an appellant proves that the agency
committed a harmful procedural error in applying the agency’s procedures in
arriving at its decision. 5 C.F.R. § 1201.56(c)(1). The appellant must prove his
claim of harmful error by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C).
An agency’s error is only harmful if the record shows that a procedural error was
likely to have caused the agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error. Mattison v. Department
of Veterans Affairs, 123 M.S.P.R. 492, ¶ 14 (2016); 5 C.F.R. § 1201.4(r). The
administrative judge found that the appellant failed to meet his burden of proving
harmful error, and we agree. ID at 30-34.
The appellant argues that the agency committed harmful error by neglecting
his rights under the American Federation of Government Employees (AFGE)
Collective Bargaining Agreement and the criminal code and by prohibiting an
AFGE union representative from observing his July 11, 2013 investigative
interview. PFR File, Tab 1 at 16-17; IAF, Tab 43 at 2. The administrative judge
found that the appellant was not an AFGE member and, in any event, he ended
this interview as soon as he was questioned regarding the union representative
who accompanied him. ID at 32-33. The appellant does not dispute these
findings on review. Thus, we agree with the administrative judge that the agency
did not commit any error. Id.The appellant’s other harmful error claims are similarly unavailing. For
example, he reasserts that the agency committed harmful error when it attempted
to interview him based on alleged intimidation tactics used by Special Agents
“toting guns.” IAF, Tab 43 at 2. The administrative judge made factual findings
was in error. PFR File, Tab 1 at 18. Therefore, we decline to disturb it.
For the first time on review, the appellant argues that the agency was required to
include a human resources review of the suspension action during processing, and that
the agency committed harmful error by failing to follow this alleged procedure. Id.
at 4. Because the appellant has not shown that this argument is based on new and
material evidence not previously available despite his due diligence, we will not
consider it on review. 5 C.F.R. § 1201.115(d).
12
based on the evidence before her that the appellant was not intimidated. ID
at 33-34. Although the appellant repeats his allegations from below, he does not
explain why he believes the administrative judge’s specific factual finding was in
error. Id.; PFR File, Tab 1 at 8-9, 14, 16. Thus, we discern no basis to grant
review. See 5 C.F.R. § 1201.115(a)(2) (explaining that a petitioner who alleges
that the administrative judge made an erroneous finding of material fact must
explain why the challenged factual determination is incorrect and identify
specific evidence in the record that demonstrates the error).
The appellant also reasserts his argument that the agency committed
harmful error in its penalty determination because the deciding official relied on
the appellant’s 5-day suspension from 2006. PFR File, Tab 1 at 18; IAF, Tab 6
at 64. The administrative judge was not persuaded that the agency violated any
policy by considering this prior discipline. ID at 31-32. She went on to find that
the appellant had not proven that any error in considering the 2006 discipline was
harmful. ID at 32. Although on review the appellant has attempted to introduce
emails from 2005 and 2006 that he alleges support his claim of error, we decline
to consider this evidence because it is not new. See Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980) (finding that under 5 C.F.R. § 1201.115, the
Board will not consider evidence submitted for the first time on review absent a
showing that it was unavailable before the record was closed despite the party’s
due diligence); 5 C.F.R. § 1201.115(d) (explaining that to constitute new
evidence the documents and information they contain must have been unavailable
despite due diligence when the record closed below). The appellant implicitly
recognizes this fact by requesting that the Board consider the evidence because
the administrative judge allegedly declined to consider similar evidence below
due to her imposition of sanctions. 6 PFR File, Tab 1 at 18, 23-27. The
administrative judge also found that, assuming the agency committed error, it was
not harmful in light of the appellant’s lengthy disciplinary history. ID at 13. The
6
We discuss and uphold these sanctions below.
13
appellant has not disputed this finding. Thus, we are without any basis to disturb
the administrative judge’s denial of this harmful error claim. ID at 32.
The administrative judge properly found that the appellant failed to prove
retaliation for filing EEO complaints.
The administrative judge found that the appellant failed to establish that the
agency’s suspension action was motivated by retaliation for his prior EEO
activity. ID at 30. She found that the appellant’s testimony of racial slurs and
“put downs” by management officials was not credible. ID at 28-29. She also
found that the appellant provided absurd testimony in support of his argument
that the agency was a “well-organized mafia” out to get him solely because of his
race. ID at 29. On review, the appellant does not dispute these findings. 7
To the extent that the administrative judge suggested that the evidence
should be analyzed as either “direct” or “indirect” evidence, we modify this
reasoning to find that, regardless of the characterization of the evidence, the
appellant failed to meet his burden to prove that retaliation was a motivating
factor in the contested personnel action. ID at 27-28 n.11; see Gardner v.
Department of the Army, 123 M.S.P.R. 647, ¶¶ 29-31 (2016) (explaining that
evidence of EEO discrimination or retaliation should not be separated into
different categories as if subject to different standards, but instead should be
considered as a whole), clarified by Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 23-24. We find that the administrative judge properly
considered the witnesses’ testimony and the evidence as a whole in finding that
the appellant failed to show that retaliation was a motivating factor in his
suspension. ID at 30. Because we find that the appellant failed to show that
retaliation was a motivating factor, we need not reach the issue of whether he
7
To the extent that the appellant is raising a claim of race discrimination on review, as
discussed above, it appears that the administrative judge addressed the appellant’s
testimony of racial comments, but did not credit it. ID at 28-29; PFR File, Tab 1 at 3-4.
Therefore, we find that she implicitly denied any such claim. We discern no basis to
disturb her findings.
14
showed that retaliation was a but-for cause of the suspension. See Pridgen v.
Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33. 8
The administrative judge correctly found that the agency established nexus and
the reasonableness of its penalty.
In addition to the requirement that the agency prove its charges by
preponderant evidence, the agency also must prove that there is a nexus, i.e., a
clear and direct relationship between the articulated grounds for the adverse
action and either the appellant’s ability to accomplish his duties satisfactorily or
some other legitimate Government interest. Campbell v. Department of the Army,
123 M.S.P.R. 674, ¶ 24 (2016). Here, the administrative judge found that the
agency established nexus between the charges of inappropriate conduct and
failure to cooperate in an agency investigation and the efficiency of the service.
ID at 25-26. The appellant does not challenge this finding on review, and we find
no basis to disturb it.
When, as here, all of the charges have been sustained, the Board will
review an agency-imposed penalty only to determine if the agency considered all
of the relevant Douglas factors, and exercised management discretion within
tolerable limits of reasonableness. See Douglas v. Veterans Administration, 5
M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of factors relevant to
penalty determinations). In making this determination, the Board must give due
weight to the agency’s primary discretion in maintaining employee discipline and
efficiency, recognizing that the Board’s function is not to displace management’s
responsibility, but to ensure that managerial judgment has been properly
exercised. Campbell, 123 M.S.P.R. 674, ¶ 25; Douglas, 5 M.S.P.R. at 306. The
8
In his oral reply, the appellant refers to his prior EEO activity, including EEO
complaints filed in 2008, 2009, 2011, and 2014. IAF Tab 1 at 24-26. It is not clear
whether, on review, the appellant is claiming reprisal based upon a prior complaint of
disability discrimination. Assuming arguendo that the appellant’s prior complaints did
include claims of disability discrimination, the appellant would need to prove that the
retaliation was a but-for cause of the suspension at issue in this case. See Pridgen,
2022 MPSB 31, ¶¶ 45-47. We find that the appellant has not met this burden.
15
Board will modify the agency’s chosen penalty only if it finds that the agency’s
judgment clearly exceeded the limits of reasonableness. Douglas, 5 M.S.P.R.
at 306.
Here, the decision letter shows that the deciding official considered the
relevant factors including the seriousness of the appellant’s repeated misconduct,
which he found unprofessional, discourteous, and disruptive to his work and his
coworkers. IAF, Tab 6 at 64-65, 70-73. The deciding official considered that the
appellant’s misconduct was contrary to the behavior expected of a Personnel
Security Specialist, he impeded an official agency investigation, and his
misconduct could reflect adversely on the agency’s regional reputation. Id.
at 64-65. He further considered the appellant’s prior discipline for rude,
inappropriate, and unethical behavior at work: the 5-day suspension in 2006,
discussed above; a letter of reprimand and a counseling in 2011, and two 7 -day
suspensions in 2012. Id. at 64; ID at 36-37. The deciding official stated that his
confidence in the appellant was eroded. IAF, Tab 6 at 65. He further determined
that the proposed discipline fell squarely within the agency’s table of penalties,
which provided that the penalty range for a first offense of failure to cooperate
with an official investigation ranged from a written reprimand to a removal, and
that the penalty for a third offense of unprofessional and discourteous conduct
ranged from a 15-day suspension to a removal. Id.
The administrative judge found that the deciding official thoroughly
considered the relevant Douglas factors and exercised his discretion within the
tolerable limits of reasonableness in mitigating the proposed 45-day suspension to
a 40-day suspension. ID at 37-38. Recognizing that the Board must accord
proper deference to the agency’s primary discretion in managing its workforce,
we see no reason to disturb this finding. See Douglas, 5 M.S.P.R. at 306.
16
The appellant did not prove his claims of bias and abuse of discretion by the
administrative judge.
On review, the appellant argues that the administrative judge was rude,
raised her voice to him, and showed bias in favor of his female coworker. 9 PFR
File, Tab 1 at 11-12, 14-15. There is a presumption of honesty and integrity on
the part of administrative judges and the Board will not infer bias based on an
administrative judge’s case-related rulings. See Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 18 (2013). An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if her
comments or actions evidence a deep-seated favoritism or antagonism that would
make fair judgment impossible. Id. Even if an administrative judge was
somewhat abrupt and impatient with the appellant, such conduct would not
establish bias. Tyler v. U.S. Postal Service, 90 M.S.P.R. 545, ¶ 8 (2002). Thus,
we deny the appellant’s bias claim.
The appellant also argues that the administrative judge abused her
discretion in ruling on the admission of evidence. PFR File, Tab 1 at 4-5. For
example, he references the agency’s submitting a photograph of him with an
assistant director, which the agency alleged he showed to his female coworker to
support his assertion to her that he had a strong connection with upper
management. ID at 14-15; IAF, Tab 8 at 72. He argues that the administrative
judge abused her discretion by not allowing him to submit an unaltered group
photograph as rebuttal evidence to prove that an agency employee had deleted the
image of another manager from the photo. 10 PFR File, Tab 1 at 10-12.
9
On appeal, the appellant filed a motion to have the administrative judge recuse herself,
primarily asserting his disagreement with her rulings on discovery and procedural
matters. IAF, Tab 73. The administrative judge denied his motion, finding that his
claims of bias based on her judicial remarks, rulings, and conduct in an adjudicatory
setting did not support a finding of bias or prejudice. IAF, Tab 81 at 3-4.
10
Although the appellant claims that the agency altered the photograph, we disagree.
PFR File, Tab 1 at 11-12. The photo does not appear altered as the appellant claims,
but rather is an image of a portion of the photo. IAF, Tab 8 at 72.
17
To obtain reversal of an initial decision on the ground that the
administrative judge abused her discretion in excluding evidence, the appellant
must show on review that relevant evidence, which could have affected the
outcome, was disallowed. Sanders v. Social Security Administration,
114 M.S.P.R. 487, ¶ 10 (2010). Here, the appellant does not challenge the
finding that he showed his coworker the photo in question, and does not explain
how presenting the complete image with additional people supports his argument
that he did not engage in inappropriate conduct. PFR File, Tab 1 at 11-12. Nor
do we discern how viewing the entire photo would have caused the administrative
judge to find the agency did not prove this charge. ID at 14-16.
The appellant also appears to argue that the administrative judge violated
Rule 102 of the Federal Rules of Civil Procedure when she allowed the agency to
submit into evidence a “huge volume” of allegedly extraneous documents, emails,
and tapes, over his representative’s objection. PFR File, Tab 1 at 4. The
appellant further argues that the volume of that evidence made it impossible “for
anyone to ascertain the truth.” Id. at 5. The appellant appears to be quoting Rule
102 of the Federal Rules of Evidence, which states that the purpose of the Federal
Rules of Evidence is “to administer every proceeding fairly, eliminate
unjustifiable expense and delay, and promote the development of evidence law, to
the end of ascertaining the truth and securing a just determination.” Fed. R.
Evid. 102. The Board is not bound by the Federal Rules of Evidence but may
look to them for guidance. Holton v. Department of the Navy, 123 M.S.P.R. 688,
¶ 13 n.4 (2016), aff’d, 884 F.3d 1142 (Fed. Cir. 2018). Even if we found it
appropriate to apply Rule 102 here, it does not place any limitation on the volume
of evidence an administrative judge may admit. Fed. R. Evid. 102. The
administrative judge has wide discretion to control the proceedings in front of her
and to receive relevant evidence. Tisdell v. Department of the Air Force ,
94 M.S.P.R. 44, ¶ 13 (2003); 5 C.F.R. § 1201.41(b)(3). The appellant has
18
provided no compelling argument to support his claim that the administrative
judge’s rulings extended beyond this well-established discretion.
The appellant further argues that the administrative judge abused her
discretion when she imposed sanctions against him for his repeated failure to
identify his “prima facie defenses.” PFR File, Tab 1 at 17-18. He argues that the
sanctions were unreasonable because his representative had a sudden emergency
and notified the administrative judge. Id. He also argues that the agency spent
3 years planning to terminate him, and the administrative judge did not provide
his representative with enough time to review the voluminous documents and
tapes submitted by the agency. Id.We find that the administrative judge did not abuse her discretion when she
imposed sanctions on the appellant. On several occasions, the administrative
judge ordered the appellant to respond to the agency’s discovery requests and the
Board’s May 25, 2016 Affirmative Defenses Order; explain his failures to
respond as required by an Order to Show Cause, dated July 21, 2016; and file
prehearing submissions. IAF, Tab 28, Tab 82 at 1-2. Based on the appellant’s
repeated failure to respond to her orders, the administrative judge sanctioned him.
ID at 26; IAF, Tab 28. She allowed the appellant to present his affirmative
defenses of harmful procedural error and discrimination (including retaliation) as
expressed in his August 1, 2016 “Response to Show Cause Order” but prohibited
him from calling any witnesses except for himself at the hearing and
supplementing the record. ID at 26; IAF, Tab 28 at 3-4. These sanctions fall
within the administrative judge’s authority under the Board’s regulations, which
permit her to impose sanctions as necessary to serve the ends of justice when, as
here, a party fails to comply with an order. See 5 C.F.R. §§ 1201.41(a), (b)
(11), 1201.43(a)(2). We therefore find that the appellant did not prove that the
administrative judge abused her discretion. Accordingly, we affirm the initial
decision as modified.
19
NOTICE OF APPEAL RIGHTS 11
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 your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
11
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.
20
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
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. 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
21
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
22
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. 12 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit 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.
12
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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.