Keith Starks v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEITH L. STARKS, DOCKET NUMBER
Appellant, DE-0752-18-0076-I-1
v.
DEPARTMENT OF THE ARMY, DATE: December 7, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Janice L. Jackson , Leavenworth, Kansas, for the appellant.
Kristine Hale Bell , Esquire, and E. Patrick Gilman , Fort Leavenworth,
Kansas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. He argues that the administrative judge erred in finding
that the agency proved the charge, the agency did not commit harmful procedural
error in removing him, and the penalty of removal was reasonable. Generally, we
grant petitions such as this one only in the following circumstances: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 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 further address the appellant’s chain of custody
argument and apply the correct standard to the appellant’s affirmative defense of
reprisal for filing a Board appeal, we AFFIRM the initial decision.
¶2 The administrative judge determined that the agency proved that the chain
of custody of his urine sample was maintained and verifiable. Initial Appeal File
(IAF), Initial Decision (ID), Tab 74 at 5-8. To the extent that it is unclear from
the initial decision, we find that the Fort Mead Forensic Toxicology Lab (FTDTL)
implemented the double billable stamp system. IAF, Tab 66, Hearing Recording,
Day 1, Part 3 at 21:00-34:00 (testimony of the FTDTL Technical Director).
Consistent with the system, the agency followed the FTDTL’s procedures for
packaging and shipping the sample by FedEx to its Crofton, Maryland warehouse,
and an FTDTL employee delivered the package from the warehouse to the FTDTL
by a Government vehicle, where it was entered into the FTDTL’s system. ID
at 7-8; IAF, Tab 9 at 47, Tab 38 at 45, Tab 66, Hearing Recording, Day 1, Part 3
at 21:00-34:00, Part 4 at 7:00-14:00 (testimony of the FTDTL Technical
Director). On review, the appellant contends that the FTDTL employee
responsible for delivering the package failed to sign the chain of custody form,
thereby breaking the chain of custody and rendering the agency unable to
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establish that the sample belonged to him. Petition for Review File, Tab 3
at 10-13. We disagree. The administrative judge found that FedEx employees
were not required to sign the Federal Chain of Custody Form (CCF), and, even if
they were, their failure to do so was not harmful. ID at 7-8; IAF, Tab 9 at 47-54;
see Forte v. Department of the Navy, 123 M.S.P.R. 124, ¶ 9 (2016) (explaining
that an agency’s failure to comport with chain of custody procedures is reviewed
under a harmful error standard). We extend this finding to the FTDTL employee
who was responsible for picking up the appellant’s sample for the same reasons.
ID at 7-8; IAF, Tab 9 at 455-56. In any event, the agency presented evidence
showing an unbroken chain of custody. The CCF identified the agency employee,
the agency’s Drug Testing Coordinator, who packaged and mailed the sample by
FedEx. IAF, Tab 9 at 47. The FedEx tracking information identified the
individual who signed for the package at the FedEx warehouse. IAF, Tab 38
at 45. The CCF also identified the first FTDTL employee, the Specimen
Controller, to access the sample once it arrived at the FTDTL and confirmed that
the sample identification matched that of the sample prepared and shipped by the
agency. IAF, Tab 9 at 47, 51. Further, the sample’s seal was unbroken upon
arrival at the FTDTL, assuring that it had not been tampered with during transit.
Id. Given this evidence, we agree that the agency proved that the sample tested
belonged to the appellant. See Boykin v. U.S. Postal Service, 51 M.S.P.R. 56, 58
(1991) (finding that the agency failed to show the positive drug test was valid
because it produced no evidence indicating how the sample arrived at the
laboratory for testing).
¶3 The administrative judge also found that the appellant did not meet his
burden of proving his race discrimination affirmative defense. ID at 13-15. To
establish a claim of discrimination or reprisal for equal employment opportunity
(EEO) activity arising under Title VII, an appellant must show that the prohibited
consideration was at least a motivating factor in the personnel action at issue.
Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 21-22. In
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reviewing the administrative judge’s analysis, we find that the administrative
judge properly considered the evidence as a whole. Because we affirm the
administrative judge’s finding that the appellant failed to show that any
prohibited consideration was a motivating factor in the agency’s action, we need
not resolve the issue of whether the appellant proved that retaliation was a
“but-for” cause of the agency’s decision. See id., ¶¶ 20-22, 29-33..
¶4 Regarding the appellant’s claim that the agency removed him in reprisal for
filing a Board appeal, the administrative judge construed this affirmative defense
as a claim of reprisal for engaging in protected EEO activity in violation of
42 U.S.C. § 2000e–16. However, there is no indication that the appellant alleged
whistleblowing reprisal or an EEO claim in his prior appeal. Starks v.
Department of the Army, MSPB Docket No. DE-315H-09-0530-I-1, Initial
Decision at 1-11 (June 25, 2010). Thus, the administrative judge applied the
wrong legal standard in analyzing this claim, and we modify the initial decision
accordingly.
¶5 For an appellant to prevail on an affirmative defense of retaliation for
activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii), if he does not allege
reprisal for EEO activity protected under Title VII, he must show that: (1) he
engaged in protected activity; (2) the accused official knew of the activity; (3) the
adverse action under review could have been retaliation under the circumstances;
and (4) there was a genuine nexus between the alleged retaliation and the adverse
action. Mattison v. Department of Veterans Affairs, 123 M.S.P.R. 493, ¶ 8
(2016). To establish a genuine nexus, an appellant must show that the adverse
action was taken because of his protected activity. Id. This requires the Board to
weigh the severity of the appellant’s alleged misconduct against the intensity of
the agency’s motive to retaliate. Id.¶6 Although the administrative judge applied the incorrect standard in
considering the appellant’s retaliation affirmative defense, we find that remand is
unnecessary. See Slater v. Department of Homeland Security, 108 M.S.P.R. 419,
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¶ 12 (2008) (declining to remand because the parties addressed the relevant
factual dispute, there was no need for additional development of the record to
resolve it, and its resolution did not require making factual findings based on
witnesses’ demeanor), overruled on other grounds by Haas v. Department of
Homeland Security, 2022 MSPB 36, ¶ 14. The administrative judge apprised both
parties of, and allowed them to address, the relevant factual dispute—whether the
involved management officials had a motive to retaliate against the appellant. ID
at 13-16; IAF, Tab 33 at 2. The administrative judge also made detailed findings
on this dispositive issue, concluding that the proposing and deciding officials
lacked any motive to retaliate against the appellant because of his prior Board
appeal. ID at 14-16. The appellant does not contest these credibility-based
findings on review, and we discern no basis for disturbing them. See Purifoy v.
Department of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016)
(providing that an administrative judge’s explicit and implicit credibility-based
findings generally are entitled to deference). We therefore find that the appellant
did not prove genuine nexus, and any error in the administrative judge’s analysis
of this affirmative defense was harmless. See Karapinka v. Department of
Energy, 6 M.S.P.R. 124, 127 (1981). Accordingly, we affirm, as modified, the
administrative judge’s finding that the appellant did not prove that the agency
removed him in reprisal for filing a Board appeal.
NOTICE OF APPEAL RIGHTS 2
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
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.
6
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:
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.
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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
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
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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
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
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
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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.
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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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.