LaGrace Roberts-Harvey v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAGRACE BETTINA ROBERTS- DOCKET NUMBER
HARVEY, CH-0752-19-0214-I-1
Appellant,
v.
DATE: May 14, 2024
DEPARTMENT OF THE ARMY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tia Thornton , Esquire, Atlanta, Georgia, for the appellant.
Erika McPherson and Paul Carlson , Redstone Arsenal, 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
affirmed the agency’s removal action. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. We MODIFY the initial
decision (1) to find that the agency established nexus between the appellant’s
proven misconduct and the efficiency of the service, (2) to clarify the appellant’s
burden for proving her affirmative defense of sex discrimination, (3) to find that
the appellant’s disclosures of wrongdoing by a non-Federal Government entity
are not protected because they do not implicate the Government’s good name or
interests, and (4) to vacate the portions of the initial decision finding that the
appellant’s disclosures were not a contributing factor in the agency’s decision to
remove her and that the agency proved by clear and convincing evidence that it
would have taken such an action absent her disclosures. Except as expressly
modified as described herein, we AFFIRM the initial decision.
BACKGROUND
The agency employed the appellant as a GS-13 Procurement Analyst in
Kuwait. Initial Appeal File (IAF), Tab 6 at 16. On November 13, 2018, the
agency proposed the appellant’s removal based on three charges: (1) use of
official position and access to information to assist a non -Federal entity in
obtaining contracts with the U.S. Government in return for money; (2) acceptance
of gifts and gratuities from a non-Federal entity in exchange for using her official
position to help secure business with the U.S. Government; and (3) failure to
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disclose gifts from foreign entities as required by law. Id. at 25-32. The
appellant was provided with an opportunity to respond, and she did so. Id.
at 23-24. Effective February 5, 2019, the agency removed the appellant from her
position. Id. at 17-22.
The appellant filed an appeal with the Board challenging the removal.
IAF, Tab 1. She also raised affirmative defenses of sex discrimination, reprisal
for whistleblowing activity, and violations of due process. IAF, Tabs 1, 20.
After holding the appellant’s requested hearing, the administrative judge issued
an initial decision sustaining the removal. IAF, Tab 33, Hearing Compact Disc
(HCD), Tab 35, Initial Decision (ID). The administrative judge found that the
agency proved its charges by preponderant evidence, that the appellant did not
prove any of her affirmative defenses, and that the penalty of removal was
reasonable. ID at 3-28.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has not filed a response to the petition
for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charges by preponderant evidence.
On review, the appellant generally asserts that “the charges were not
substantiated,” PFR File, Tab 1 at 9, but she does not explain why she believes
that there was no evidence to support the agency’s charges. Based on her
credibility determinations, the parties’ stipulated facts, and other evidence in the
record, the administrative judge found that the agency proved all three charges,
ID at 3-18, and we find no basis to disturb the administrative judge’s findings in
this regard, see Crosby v. U.S. Postal Service, 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 reached
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well-reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
The agency established nexus.
In addition to the requirement that the agency prove its charge, the agency
must also 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.
Hoofman v. Department of the Army, 118 M.S.P.R. 532, ¶ 16 (2012),
aff’d, 526 F. Appx. 982 (Fed. Cir. 2013). An agency may show a nexus between
off-duty misconduct 2 and the efficiency of the service by three means:
(1) a rebuttable presumption in certain egregious circumstances; (2) preponderant
evidence that the misconduct adversely affects the appellant’s or co -workers’ job
performance or the agency’s trust and confidence in the appellant’s job
performance; or (3) preponderant evidence that the misconduct interfered with or
adversely affected the agency’s mission. Kruger v. Department of Justice,
32 M.S.P.R. 71, 74 (1987). The administrative judge did not explicitly discuss
nexus in this case. We modify the initial decision to find that the agency
established nexus between the appellant’s proven misconduct and the efficiency
of the service.
The deciding official stated in the decision letter and her testimony that the
appellant’s misconduct adversely affected the agency’s trust and confidence in
her job performance. IAF, Tab 6 at 17; HCD (testimony of the deciding official).
The Board has held that the charge of use of official position for personal gain
has “an obvious impact on the efficiency of the service.” Lappin v. Department
2
Although it is not clear from the record, it appears that the misconduct in question
occurred off-duty, at least in part. Even if the misconduct in question involved a
combination of on- and off-duty misconduct, the outcome remains the same. See, e.g.,
Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987) (noting that there is
a sufficient nexus between an employee’s conduct and the efficiency of the service
when the conduct occurred in part at work).
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of Justice, 24 M.S.P.R. 195, 196-97 (1984). Under the particular circumstances
of this case, we find that the agency has established nexus.
The appellant failed to prove her affirmative defenses of sex discrimination,
whistleblower reprisal, and a due process violation.
On review, the appellant generally challenges the administrative judge’s
finding that she failed to prove her affirmative defenses. PFR File, Tab 1
at 12-13. However, she does not support her vague allegations of sex
discrimination, retaliation for whistleblowing, and violation of due process with
any new and material evidence. See 5 C.F.R. § 1201.115(d). Although the
appellant raises no persuasive claim of error in the administrative judge’s
analysis, we modify the initial decision to clarify the appellant’s burden for
proving her affirmative defense of sex discrimination, and to evaluate whether, as
part of her claim of whistleblowing retaliation, the appellant’s disclosures
implicate the Government’s good name or interests, still finding that the appellant
has not proven any of her affirmative defenses.
Sex discrimination
The appellant asserts that the administrative judge erred in finding that she
failed to prove her claim of sex discrimination. PFR File, Tab 1 at 12. In
particular, she contends that the administrative judge refused to listen to her
claim at the hearing. Id. The record shows otherwise.
In the initial decision, the administrative judge considered her allegations
but noted that they were deficient. ID at 18-20. In so doing, she cited to the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). ID at 18-19. As the Board has since clarified, to
prove a claim of sex discrimination, an appellant must show that the prohibited
consideration was at least a motivating factor in the action under appeal. Pridgen
v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-22.
In evaluating the appellant’s claim, we have applied the framework set
forth in Pridgen. We need not remand the appeal because the record is fully
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developed on this issue, however, and we agree with the administrative judge that
the appellant has not shown that her sex was a motivating factor in the agency’s
decision to remove her.
Whistleblower reprisal
The appellant asserts that the administrative judge erred in finding that she
failed to prove her claim of whistleblower reprisal. PFR File, Tab 1 at 12.
In particular, she contends that the administrative judge removed some of her
exhibits, but she does not identify any such exhibits. This argument is therefore
not persuasive.
Moreover, as the administrative judge properly noted, the appellant’s
allegations of wrongdoing were against a non-Federal Government entity. Under
the Whistleblower Protection Enhancement Act of 2012, a disclosure of alleged
wrongdoing committed by a non-Federal Government entity is protected under
5 U.S.C. § 2302(b)(8) only when the Government’s interests and good name are
implicated in the alleged wrongdoing, and the employee shows that she
reasonably believed that the information she disclosed evidenced that
wrongdoing. Covington v. Department of Interior, 2023 MSPB 5, ¶ 8.
Applying Covington to the facts of this case, we find that the appellant has
not shown that the Government’s interests and good name are implicated in the
alleged wrongdoing, and/or that she reasonably believed that the information she
disclosed evidenced such wrongdoing. See id. Accordingly, we modify the
initial decision to find that the appellant’s disclosures were not protected.
Because we have concluded that the appellant’s disclosures are not
protected under 5 U.S.C. § 2302(b)(8), we need not address whether any such
disclosures were a contributing factor in the agency’s decision to remove the
appellant or whether the agency proved by clear and convincing evidence that it
would have taken such an action absent the disclosures. Accordingly, we vacate
the portions of the initial decision that reach these issues.
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Due process violations
The appellant asserts that she was not provided with due process because
she was given “misleading [m]emorandums” that contained “falsified
information” in connection with the revocation of her security clearance.
PFR File, Tab 1 at 13. As the administrative judge observed, however, the
appellant raised no allegations that she did not receive notice of the charges
against her, an explanation of the agency’s evidence, or an opportunity to respond
to the charges. ID at 24. To the extent the appellant is alleging that the deciding
official was biased or relied on falsified information, she has produced no
evidentiary support for such a conclusion. See Martinez v. Department of
Veterans Affairs, 119 M.S.P.R. 37, ¶¶ 10-11 (2012) (finding that an appellant
alleging a due process violation has the burden of proving a decision maker’s
actual bias or an intolerable risk of unfairness); see also Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980) (stating that, in making a claim of
bias or prejudice against an administrative judge, a party must overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators).
Accordingly, we agree with the administrative judge that the appellant was
provided with due process. ID at 22-24. 3
The penalty of removal was reasonable.
Although the appellant argues that the penalty of removal was not
reasonable, PFR File, Tab 1 at 13, we agree with the administrative judge that the
penalty of removal does not exceed the tolerable bounds of reasonableness for the
sustained charges, see Herrera-Martinez v. Social Security Administration,
84 M.S.P.R. 426, 427, 432-33 (1999) (reversing the administrative judge’s
decision to mitigate the penalty of removal when the appellant defrauded the
3
We further find that the appellant’s remaining arguments regarding procedural and
evidentiary matters provide no basis for disturbing the administrative judge’s
evidentiary findings.
8
Government and accepted gifts from claimants, despite his 7 ½ years of Federal
service and lack of prior discipline); see also Hayes v. Department of Labor,
65 M.S.P.R. 214, 216-17, 219-20 (1994) (finding removal to be a reasonable
penalty when the appellant improperly accepted cash payments and interfered
with an official investigation, despite his 17 years of Federal service and lack of
prior discipline).
Accordingly, we affirm the initial decision as modified herein.
NOTICE OF APPEAL RIGHTS 4
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.
4
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.
9
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
10
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
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:
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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. 5 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
5
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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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.