Andrew Ramsey v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW RAMSEY , DOCKET NUMBER
Appellant, AT-0752-22-0168-I-1
v.
DEPARTMENT OF THE ARMY, DATE: March 19, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Georgia A. Lawrence , Esquire, Atlanta, Georgia, for the appellant.
Aundrea M. Snyder , Esquire, Anniston, Alabama, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his demotion. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
The agency demoted the appellant from his position as a GS-13 Safety and
Occupational Health Manager to a nonsupervisory GS-12 position based on three
charges. Initial Appeal File (IAF), Tab 4 at 11-13, 78-81. Charge (1) averred
that the appellant failed to adequately perform his supervisory duties regarding
the time and attendance of two subordinates. Id. at 12, 78-79. Charge (2)
concerned the appellant’s alleged unbecoming conduct that gave the appearance
of an improper relationship with a subordinate employee. Id. at 12, 79-80.
Charge (3) concerned the appellant’s lack of candor when asked about his
relationship with the subordinate. Id. at 12-13, 80-81.
After holding the requested hearing, the administrative judge found that the
agency met its burden of proof concerning the charges, nexus, and penalty and
that the appellant failed to meet his burden concerning his affirmative defenses of
sex-based and race-based discrimination and retaliation for equal employment
opportunity (EEO) activity. IAF, Tab 26, Initial Decision (ID) at 3-29. The
appellant has filed a petition for review, in which he challenges virtually all the
administrative judge’s findings. Petition for Review (PFR) File, Tab 3 at 5-13.
The agency has responded in opposition to the petition for review. PFR File,
Tab 5.
Regarding the appellant’s challenges to the administrative judge’s factual
findings, the administrative judge properly evaluated the hearing testimony and
3
made credibility determinations in accordance with the standards set forth in
Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). ID at 17-19, 22.
The appellant has not identified a sufficiently sound reason for disturbing these
findings. 2 PFR File, Tab 3 at 6-9; see Haebe v. Department of Justice, 288 F.3d
1288, 1301 (Fed. Cir. 2002) (stating that 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). The appellant also argues that the administrative judge’s legal
analysis was conclusory and vague — particularly regarding charges (2) and (3)
— because she did not explicitly address what the appearance of an improper
relationship was, to whom the appearance was created, and what statements
lacked candor. PFR File, Tab 3 at 9. We disagree; this information is clearly set
forth in the agency’s charges and thoroughly addressed in the initial decision. 3
IAF, Tab 4 at 79-81; ID at 14-22. The appellant has not shown why we should
disturb the initial decision in this regard. 4 Crosby v. U.S. Postal Service,
2
In his petition for review, the appellant cites, among other things, Connolly v.
Department of Justice, 766 F.2d 507, 512 (Fed. Cir. 1985) for the proposition that the
Board’s authority to review an initial decision is “plenary.” PFR File, Tab 3 at 6. In
doing so, he ignores the U.S. Court of Appeals for the Federal Circuit’s qualifier: “with
deference of course to the presiding official on any issues of credibility.” Connolly,
766 F.2d at 512.
3
Regarding the second charge of conduct unbecoming, the Board has held that
unbecoming conduct includes conduct which was improper, unsuitable, or that detracted
from one’s character or reputation. Social Security Administration v. Long,
113 M.S.P.R. 190, ¶ 42 (2010), aff'd, 635 F.3d 526 (Fed. Cir. 2011) and overruled on
other grounds by Department of Health and Human Services v. Jarboe , 2023 MSPB 22.
Although not specifically defined by the administrative judge, she correctly found that
the appellant’s conduct fell within that broad label.
4
The appellant also suggests — for the first time on review — that a delay by the
agency in proposing discipline for the lax oversight of his subordinates’ time and
attendance shows that the charge was “pretextual.” PFR File, Tab 3 at 7. 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. Clay v. Department of the Army, 123 M.S.P.R. 245,
4
74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility); Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
The appellant also challenges the administrative judge’s findings as to
nexus and penalty. PFR File, Tab 3 at 9-10. He argues that the administrative
judge did not analyze the nexus between his off-duty conduct of having lunch and
going to a motel with a subordinate and the efficiency of the service. 5 Id. To the
extent that the administrative judge’s nexus analysis was incomplete, we
supplement that analysis and find that any error did not prejudice the appellant’s
substantive rights. ID at 22-23. The agency proved that the apparent relationship
negatively affected interactions in the workplace. IAF, Tab 9 at 34-35, 54,
Tab 24, Hearing Recording (testimonies of Safety Specialist, Explosives; Safety
Specialist; and Engineering Technician). Thus, the nexus between the conduct
and the efficiency of the service is clear. See Kruger v. Department of Justice,
32 M.S.P.R. 71, 74 (1987) (stating that an agency may show a nexus linking an
employee’s off-duty misconduct with the efficiency of the service by showing
that the misconduct affects the employee’s or his coworkers’ job performance, or
management’s trust and confidence in the employee’s job performance).
Regarding the penalty, the appellant argues that a demotion is too harsh; however,
his disagreement with the penalty does not demonstrate any legal or factual error
¶ 6 (2016). The appellant has not shown why he could not have raised this argument
below. In any event, the appellant has not shown that, under the circumstances, the
agency’s delay in discovering the time and attendance issues was suspicious or
undermines the agency’s charge in any way.
5
Although the appellant was on leave at the time of the conduct, he allowed his
subordinate employee not to take leave. IAF, Tab 4 at 80; ID at 14.
5
by the administrative judge. 6 PFR File, Tab 3 at 10; ID at 23-25; 5 C.F.R.
§ 1201.115.
Lastly, the appellant renews his claims of race-based and sex-based
discrimination and retaliation for EEO activity. PFR File, Tab 3 at 10-13.
Applying the standard set forth by the Board in Savage v. Department of the
Army, 122 M.S.P.R. 612 (2015), the administrative judge found that the appellant
failed to prove by preponderant evidence that a prohibited consideration was a
motivating factor in the agency’s demotion action. ID at 25-29. We find no basis
on which to reverse the administrative judge’s findings on these claims. Because
the appellant did not show that discrimination or retaliation was a motivating
factor in the action, we do not reach the question as to whether he proved that a
prohibited consideration was a but-for cause of the action. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 30.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
6
In arguing that the penalty was too harsh, the appellant contends, among other things,
that there was insufficient evidence of an improper relationship with his subordinate to
sustain the lack of candor charge. PFR File, Tab 3 at 10. The administrative judge
found that the appellant’s denial of an improper relationship was unconvincing in the
face of the credible testimony of the agency’s witnesses and the clear facts to the
contrary. ID at 18-19. We discern no reason to disturb the administrative judge’s
credibility findings in this regard. See Haebe, 288 F.3d at 1301. Thus, this argument is
unavailing.
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.
6
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:
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
7
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
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
8
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. 8 The court of appeals must receive your petition for
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.
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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.
10
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.