Doane Williams v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOANE WILLIAMS, DOCKET NUMBER
Appellant, SF-0752-18-0443-I-1
v.
DEPARTMENT OF DEFENSE, DATE: May 15, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Daphne Barbee , Esquire, Honolulu, Hawaii, for the appellant.
Jessica Delgado , Fort Gregg Adams, Virginia, 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 removal pursuant to 5 U.S.C. chapter 75 for conduct unbecoming a
Federal employee. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant alleges the following: (1) the
administrative judge made erroneous credibility determinations; (2) the
administrative judge made erroneous evidentiary rulings; (3) the agency violated
the principle set forth in Bolling v. Department of the Air Force, 9 M.S.P.R. 335,
339-40 (1981); (4) the agency violated his due process rights; (5) the agency
committed harmful procedural error; (6) the agency discriminated against him on
the basis of his race; (7) the agency retaliated against him for his prior equal
employment opportunity (EEO) activity; (8) the agency failed to show a nexus
between his conduct and the efficiency of the service; and (9) the agency failed to
consider all of the relevant Douglas factors. Petition for Review (PFR) File,
Tab 1 at 14-30, Tab 4 at 4-11.
The appellant’s assertions on review fail to provide a reason to disturb the
administrative judge’s demeanor-based credibility findings or his reasoned
evidentiary rulings. PFR File, Tab 1 at 14-18, 24, Tab 4 at 4-6; Initial Appeal
File, Tab 21 at 3, Tab 41, Initial Decision (ID) at 6, 11 & nn.2-3, 6-8; see
Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding
that the Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing); see also Thomas v. U.S. Postal
3
Service, 116 M.S.P.R. 453, ¶ 4 (2011) (explaining that the administrative judge
has broad discretion to regulate the course of the hearing and to exclude evidence
and witnesses that have not been shown to be relevant, material, and
nonrepetitious).
On review, the appellant contends that the agency violated “the principle”
of Bolling; however, the nature of his argument is unclear. PFR File, Tab 1 at 20
(citing Bolling, 9 M.S.P.R. at 339-40). Under Bolling, when an agency relies on
past discipline to support the disciplinary action that is on appeal, the Board will
generally conduct a limited review of the past discipline. Rosenberg v.
Department of Transportation, 105 M.S.P.R. 130, ¶ 33 (2007). However, the
Board has found that Bolling review is appropriate only where the appellant has
actually challenged the validity of his prior discipline on appeal. Id., ¶ 34. Here,
because the record is devoid of any indication that the appellant challenges the
validity of his prior discipline, Bolling is inapposite to his appeal. See id.The appellant reiterates on review that the agency violated his due process
rights, committed harmful procedural error, discriminated against him on the
basis of his race, and retaliated against him in reprisal for his protected EEO
activity. PFR File, Tab 1 at 21-30. We find that the appellant’s generalized
assertions on review amount to nothing more than mere disagreement with these
conclusions, and we find no basis to disturb these findings. 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 the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions).
The appellant’s contention on review that the agency failed to meet the
nexus requirement is similarly unavailing because both specifications of the
charge occurred on agency premises, and one specification undisputedly occurred
while the appellant was on duty. PFR File, Tab 1 at 18-20; see Parker v. U.S.
Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987) (explaining that misconduct
4
that occurs on agency premises and involves agency personnel is sufficient to
establish nexus). Thus, we agree with the administrative judge that the agency’s
action promotes the efficiency of the service. ID at 23.
Lastly, in sustaining the agency’s removal action, the administrative judge
considered the record as a whole, found that the deciding official properly
weighed the relevant factors, and agreed that removal for the appellant’s conduct
was reasonable under the circumstances. ID at 24-25. We discern no basis to
disrupt his reasoned findings. See Jefferson v. Veterans Administration,
6 M.S.P.R. 348, 351-52 (1981) (finding appropriate the appellant’s removal for
two specifications of disrespectful conduct towards supervisors).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 2
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
2
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.
5
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
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
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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
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
7
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. 3 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
3
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.
8
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.