Ernest Graham v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERNEST C. GRAHAM, DOCKET NUMBER
Appellant, DC-0752-17-0577-I-1
v.
DEPARTMENT OF THE NAVY, DATE: February 29, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David A. Branch , Esquire, Washington, D.C., for the appellant.
Bridget Karns , 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 removal. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
BACKGROUND
Prior to his removal, the appellant was employed by the agency as a Utility
Systems Repair Operator at the Washington Navy Yard. Initial Appeal File
(IAF), Tab 1 at 1. On August 15, 2016, the agency issued its decision to suspend
the appellant indefinitely based on reasonable cause to believe a crime had been
committed for which imprisonment may be imposed. 2 IAF, Tab 3 at 93-96. In
November 2016, a Superior Court judge in Washington, D.C., acquitted the
appellant of the crime of “attempted threats.” IAF, Tab 15 at 21, 33. On
December 8, 2016, the agency proposed his removal based on the following
charges: (1) sleeping on duty on six different incidents between February and
April 2016; (2) falsification of log sheets on February 15, 2016, when he filled
out the log sheets without first checking the readings on the boiler equipment; and
(3) inappropriate comments to his coworker on April 18, 2016, implying physical
harm to both his coworker and his supervisor while using expletives and
references to race. IAF, Tab 3 at 61-65. On May 4, 2017, the agency issued a
decision letter on its proposed removal, sustaining the charges and finding that
removal was an appropriate penalty. IAF, Tab 3 at 19-24.
2
The appellant’s indefinite suspension is the subject of a previously filed and
separately adjudicated appeal, Graham v. Department of the Navy, MSPB Docket No.
DC-0752-16-0889-I-1.
3
The appellant filed this appeal of his removal with the Board. IAF, Tab 1.
Following a hearing, the administrative judge issued an initial decision affirming
the removal. IAF, Tab 22, Initial Decision (ID) at 8. She found that the agency
proved all three charges. ID at 4-6. She further found that the agency’s action
promoted the efficiency of the service and removal was a reasonable penalty for
the sustained charges. ID at 6-7. The administrative judge also concluded that
the appellant did not prove his affirmative defenses of discrimination on the basis
of age, race, and retaliation for prior Equal Employment Opportunity (EEO)
activity. 3 ID at 8; IAF, Tab 19 at 2-10.
The appellant timely filed a petition for review, challenging the
administrative judge’s findings that the agency proved its charges and the
reasonableness of the penalty imposed. Petition for Review (PFR) File, Tab 1.
The agency has responded. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge made proper credibility findings based on the hearing
testimony and record evidence.
In sustaining the charges, the administrative judge credited the testimony of
a coworker, who testified as to the conduct underlying the appellant’s removal,
over the appellant’s denials. ID at 2-6. On review, the appellant disputes the
credibility-based findings of the administrative judge. PFR File, Tab 1 at 6-8.
We are not persuaded.
The Board must give deference to an administrative judge’s credibility
determinations when they are based explicitly or implicitly on the observation 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,
3
The appellant does not challenge the administrative judge’s finding regarding his
affirmative defenses on review. Because the administrative judge’s finding—that the
appellant failed to prove that his age, race, and EEO activity were a motivating factor in
his removal—is unchallenged on review, we need not reach the question of whether the
appellant’s age, race, or EEO activity was a “but-for” cause of the removal action. See
Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33.
4
288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the administrative judge correctly
resolved the credibility determinations in accordance with Hillen. 4 She identified
the factual questions in dispute, summarized the agency’s charges, and then
analyzed the evidence that the parties offered with respect to the charges. ID
at 2-6. The administrative judge then stated that she believed the appellant’s
coworker’s version and explained why she found the appellant less credible. Id.As to the sleeping on duty charge, the administrative judge found credible
the testimony of the appellant’s coworker that he had personally observed the
appellant sleeping on duty on multiple occasions, which was corroborated by
photographs he took of the appellant sleeping at work. ID at 2-4; IAF, Tab 17
at 36-38, 42, Tab 18 at 4-13, 15-16. In contrast, the administrative judge did not
find credible the appellant’s testimony that he was “merely resting” or avoiding
his coworker. ID at 3. On review, the appellant alleges that the administrative
judge improperly found his coworker’s testimony more credible than his. PFR
File, Tab 1 at 6. In support of this argument, he argues that his coworker testified
that he could not remember the specific dates on which he took the photographs
allegedly portraying the appellant sleeping on duty. Id. However, in making her
credibility determinations and weighing the evidence, the administrative judge
acknowledged that during the hearing the coworker could not recall the specific
dates the photos were taken but that he testified that the photos could be
identified by the date on his phone and he had previously provided that
information to the investigator. ID at 3. While the photos provided by the
agency do not reflect the dates each was taken, the accompanying documents
4
To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version she believes, and explain in detail why she found the chosen version more
credible, considering such factors as (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) his character; (3) any prior inconsistent
statement by the witness; (4) his bias, or lack of bias; (5) the contradiction of his
version of events by other evidence or its consistency with other evidence; (6) the
inherent improbability of his version of events; and (7) his demeanor. Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987).
5
confirm it was during the February to April 2016 time period in question,
specifically an email in the record reflects that the appellant’s supervisor received
three of the photos on or before April 27, 2017. IAF, Tab 17 at 34-38, 42. To the
extent that the appellant is questioning whether he was asleep on the specific
dates alleged in the proposed removal, we are not persuaded. An agency is
required to prove only the essence of its charge; it need not prove each factual
specification supporting the charge. Oates v. Department of Labor, 105 M.S.P.R.
10, ¶ 9 (2007). Given the administrative judge’s explicit demeanor-based
findings, we find that the appellant has failed to provide a sufficiently sound
reason to disturb her findings that the agency proved its first charge. See Haebe,
288 F.3d at 1301.
For the falsification charge, the appellant alleges that the administrative
judge improperly relied on his coworker’s testimony in sustaining this charge and
“baldly stated” that she did not find the appellant credible. PFR File, Tab 1 at 6.
We are not persuaded. The administrative judge credited the appellant’s
coworker, as supported by his corroborating video evidence, that the appellant
stated he could “predict” the boiler readings and therefore did not actually need to
check the boiler. ID at 4; IAF, Tab 4. In finding the appellant’s excuses less
credible, the administrative judge observed that he offered varying explanations
between the video recording, his written reply to the proposed removal, and his
hearing testimony. ID at 4-5. For example, in the video the appellant stated he
could “predict” the readings and did not need to check the boiler, IAF, Tab 4,
while in his written reply to the proposed removal he claimed that he “may have
been trash talking or bantering” with his coworker, IAF, Tab 3 at 36, and during
the hearing the appellant testified both that most of the readings of the boiler
equipment stay the same if the weather and temperature do not change and that he
had recorded the readings on a small slip of paper that could not be seen in the
video, IAF, Tab 21, Hearing Compact Disc (HCD) (testimony of the appellant).
6
The appellant’s argument on review does not provide a basis to disturb the
administrative judge’s findings.
Finally, for the inappropriate comments charge, the appellant asserts that
the underlying conduct, including the video recording of the incident, formed the
basis of an attempted threats criminal charge. PFR File, Tab 1 at 7-8. He states
that he was acquitted of the attempted threats charge and, as a result, his
coworker is now of questionable credibility. Id. 5 We disagree.
The criminal judge did question the appellant’s coworker’s credibility
during the trial of the “attempted threats” charge but it was regarding the issue of
whether he felt threatened by the appellant. IAF, Tab 15 at 28-29. Here, the
agency did not charge the appellant with “attempted threats” but with
“inappropriate comments.” IAF, Tab 3 at 62. 6 A general charge such as this one
has no specific elements of proof; it is established by proving that the
employee committed the acts alleged in support of the broad label. See
Canada v. Department of Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010)
(reaching the same conclusion as to charges of “conduct unbecoming” and
“improper conduct”). Notably, the appellant does not dispute that he made the
comments at issue here. PFR File, Tab 1 at 7.
While the administrative judge properly credited the testimony of the
appellant’s coworker as to his conversation with the appellant, she also relied on
5
The appellant also alleges that the administrative judge “unfairly disregarded” the fact
that he was previously acquitted of the attempted threats criminal charge. PFR File,
Tab 1 at 8, Tab 15 at 20-34. To the extent the appellant is arguing that acquittal of the
criminal charge warrants not sustaining the inappropriate comments charge at issue in
this adverse action, we disagree. A criminal acquittal is not binding in a subsequent
civil action due to the differing standards of proof. Rodriguez-Ortiz v. Department of
the Army, 46 M.S.P.R. 546, 548 (1991).
6
Because the agency charged the appellant with inappropriate comments, rather than
with making a threat, the agency was not required to prove that the appellant made a
threat under the test set forth in Metz v. Department of the Treasury, 780 F.2d 1001,
1002-03 (Fed. Cir. 1986), but could instead consider the threatening nature of the
appellant’s comments in determining the penalty. E.g., Brough v. Department of
Commerce, 119 M.S.P.R. 118, ¶ 12 n.2 (2013).
7
the April 18, 2016 video of the incident which was recorded by the coworker and
corroborated his testimony. ID at 5-6; IAF, Tab 4. She did not credit the
appellant’s testimony that his comments were just “trash talk” and that vulgar
language was common at the boiler plant. ID at 6. She found the comments
inappropriate, not because of the appellant’s use of obscenities, but because the
appellant made comments about killing his coworkers, especially in light of the
Navy Yard shooting that took place in September 2013. ID at 5-6. We find that
the appellant has failed to provide a sufficiently sound reason to disturb these
credibility determinations. See Haebe, 288 F.3d at 1301.
As to all three charges, the appellant also alleges that the administrative
judge erroneously failed to credit the corroborating testimony of a different
coworker who was also a work leader. PFR File, Tab 1 at 8. During the work
leader’s 10 minutes of testimony, he testified generally to working with the
appellant and the appellant’s coworker but did not testify regarding the specifics
of the underlying conduct at issue in this appeal. HCD (testimony of the work
leader). The administrative judge’s failure to discuss testimony does not mean
that she did not consider it. See Hooper v. Department of the Interior,
120 M.S.P.R. 658, ¶ 14 (2014). Moreover, the content of the work leader’s
testimony does not change the outcome here. For example, he testified that there
is a lot of “shop talk” at work but did not offer testimony regarding the
inappropriate comments charge itself. HCD (testimony of the work leader). Nor
did he offer testimony regarding the sleeping on duty or falsification of log sheets
charges. Id. Thus, the administrative judge properly found that the agency
proved its charges and sustained the removal action.
The administrative judge correctly found that the agency met the nexus
requirement and that the penalty of removal was reasonable.
The nexus requirement, for purposes of determining whether an agency has
shown that its action promotes the efficiency of the service, means there must be
a clear and direct relationship between the articulated grounds for an adverse
8
action and either the employee’s ability to accomplish his duties satisfactorily or
some other legitimate Government interest. Scheffler v. Department of the Army,
117 M.S.P.R. 499, ¶ 9 (2012), aff’d per curiam, 522 F. App’x 913 (Fed. Cir.
2013). The administrative judge found that there was a nexus between the
appellant’s misconduct and the efficiency of the service. ID at 6. The appellant
does not challenge this finding, and we discern no basis for disturbing it.
On review, the appellant alleges that his removal should have been
mitigated to “a warning or, at most, a modest suspension.” PFR File, Tab 1 at 9.
Specifically, he argues that he was a long-time Federal employee, his only prior
discipline was a 10-day suspension, and that he was a good worker with an
exemplary work performance. Id. When, as here, all the agency’s 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. 7
Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 25 (2014). In
determining whether the selected penalty is reasonable, the Board gives due
deference to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficiency. Id. The Board will modify a
penalty only when it finds that the agency failed to weigh the relevant factors or
that the penalty the agency imposed clearly exceeded the bounds of
reasonableness. Id.As the administrative judge observed, the deciding official considered
aggravating factors, including the appellant’s prior discipline, the deciding
official’s loss of confidence in the appellant’s ability to carry out his duties, the
appellant’s higher level of responsibility as a work leader, his failure to accept
responsibility for his misconduct, and his disregard for safety and the mission of
the agency, in reaching his decision that removal was the proper penalty. ID at 7;
7
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
9
IAF, Tab 3 at 21-23, 25-33. Further, the deciding official specifically took into
consideration mitigating factors, such as the appellant’s years of Federal service
and prior performance record, but determined that it did not overcome the gravity
of the charges. IAF, Tab 3 at 23. He also considered whether the removal could
have been mitigated but determined that “lesser actions have been executed in the
past and they do not seem to have adjusted the employee’s behavior.” Id.
at 32-33.
In light of the above, we agree with the administrative judge that the
deciding official correctly weighed the relevant Douglas factors, and that the
penalty of removal was reasonable. See Christopher v. Department of the Army,
107 M.S.P.R. 580, ¶¶ 21-22 (finding that the penalty of removal did not exceed
the bounds of reasonableness when the employee was charged with falsification
of Government documents and inappropriate comments in the workplace which
were violent in nature), aff’d, 299 F. App’x 964 (Fed. Cir. 2008); Washington v.
U.S. Postal Service, 35 M.S.P.R. 195, 200 (1987) (finding that the penalty of
removal for a single incident of sleeping on duty did not exceed the bounds of
reasonableness when the employee had received prior discipline for similar
offenses only a short time before).
NOTICE OF APPEAL RIGHTS 8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
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
8
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
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
11
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
12
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 9 The court of appeals must receive your petition for
9
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
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.
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.