Paula Kohlhapp v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAULA KOHLHAPP, DOCKET NUMBER
Appellant, DE-0752-20-0252-I-1
v.
DEPARTMENT OF HOMELAND DATE: October 11, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Georgia A. Lawrence , Esquire, and Shaun C. Southworth , Esquire,
Atlanta, Georgia, for the appellant.
Michael L. Gurnee , Esquire, Centennial, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 supplement the analysis of the appellant’s claim of whistleblower
retaliation and apply the proper standard to her equal employment opportunity
(EEO) reprisal claim, we AFFIRM the initial decision.
BACKGROUND
The appellant was a Supervisory Immigration Services Officer with the
agency’s U.S. Citizenship and Immigration Services department at its Nebraska
Service Center. Initial Appeal File (IAF), Tab 5 at 13, 45. On February 14,
2020, the agency proposed to remove the appellant based on one charge of failure
to follow instructions, with two specifications, and one charge of lack of candor,
with one underlying specification. Id. at 45-47. Specifically, the agency asserted
that the appellant failed to follow instructions when, on two separate occasions,
she forwarded emails marked for management only to non-management
employees. Id. at 45-46. Moreover, the agency asserted that the appellant lacked
candor when, during an investigation by the agency’s Office of Security and
Integrity (OSI) into the forwarding of management-only emails, the appellant
denied the misconduct despite having forwarded the email in question. Id.3
at 46-47. After the appellant submitted a written reply, the deciding official
sustained the second specification underlying Charge 1 but not the first
specification. 2 Id. at 14-18, 27-40. The deciding official also sustained Charge 2
and found that the penalty of removal was warranted. Id. at 14. The appellant
filed a Board appeal arguing that the agency failed to prove the charges, asserting
whistleblower retaliation and reprisal for prior EEO activity, and contending that
the penalty of removal was too severe. IAF, Tab 1 at 16-29.
Following a hearing, the administrative judge affirmed the agency’s
removal action. IAF, Tab 20, Tab 22, Tab 27, Tab 29, Initial Decision (ID) at 1.
The administrative judge sustained both charges and found that the appellant
failed to establish her affirmative defenses of whistleblower retaliation and
reprisal for prior EEO activity. ID at 6-27. Finally, the administrative judge
found that the agency established the requisite nexus between the sustained
charges and the efficiency of the service and that the penalty of removal was
within the tolerable bounds of reasonableness. ID at 27-31.
The appellant has filed a petition for review, arguing that the administrative
judge erred in sustaining the charges, challenging the administrative judge’s
analysis regarding her affirmative defenses, and asserting that the penalty of
removal is unreasonable. 3 Petition for Review (PFR) File, Tab 1 at 5-14. The
agency has responded to the petition for review. PFR File, Tab 3.
2
Prior to the instant removal, the agency proposed and effected the appellant’s removal
based on similar charges, which she appealed to the Board. Kohlhapp v. Department of
Homeland Security, MSPB Docket No. DE-0752-19-0202-I-2 (0202 AF). Following the
agency’s rescission of the original removal action therein, the administrative judge
dismissed the appeal as moot. 0202 AF, Tab 9 at 1. The Board has issued a separate
decision vacating the initial decision and remanding that matter to the Board’s field
office for further adjudication, and its outcome has no effect on the instant appeal.
Kohlhapp v. Department of Homeland Security , MSPB Docket No. DE-0752-19-0202-I-
2, Final Order (Oct. 11, 2024).
3
The appellant’s petition for review challenges both the instant removal appeal as well
as her mootness appeal. PFR File, Tab 1 at 5, 15. As the mootness appeal is being
addressed separately, we only address here the arguments concerning her removal
appeal.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly sustained the charges.
The administrative judge correctly sustained the charge of failure to follow
instructions.
The agency’s second specification underlying Charge 1 charged the
appellant with forwarding an email regarding overtime eligibility that was labeled
“for the management team only” to a non-management employee. IAF, Tab 5
at 46. The administrative judge found that the appellant failed to follow
instructions when she received a clear instruction not to forward the email in
question to non-management individuals but did so anyway. ID at 6-11. The
appellant argues that the agency did not provide proper instructions and that her
forwarding of the email was unintentional. PFR File, Tab 1 at 7. We agree with
the administrative judge. To prove a charge of failure to follow instructions, an
agency must establish that the following elements: (1) the employee was given a
proper instruction; and (2) she failed to follow the instruction, without regard to
whether the failure was intentional or unintentional. Powell v. U.S. Postal
Service, 122 M.S.P.R. 60, ¶ 5 (2014).
As for the first element, the administrative judge found that the language in
the email noting that it was “intended for the management team only” was a clear
instruction not to forward the email to non-management and was a proper
exercise of managerial authority. ID at 8. The appellant merely disagrees with
this finding, asserting that she was not given proper instructions or a policy. PFR
File, Tab 1 at 7. However, she fails to explain how the instruction at issue was
improper or unclear. The Board will not disturb an administrative judge’s
findings when he considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions. Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987). The email in question includes clear
language instructing the recipients that it is for management only and further
5
directs the recipients on how to handle union questions about the information
contained therein. IAF, Tab 5 at 81-82. We find nothing improper about
management sending an email for the management team only. Accordingly, we
agree with the administrative judge, and the appellant’s arguments to the contrary
are unpersuasive.
As to the second element, the record contains an email sent from the
appellant’s work email address to her personal email address forwarding the
management email in question. IAF, Tab 10 at 6-7. The record further includes
an email from the appellant’s personal email address to a non-management
individual working with the agency’s union. Id. The appellant does not deny
forwarding the email to a non-management individual but, rather, argued that it
was done inadvertently and not intentionally. IAF, Tab 13 at 4, 21. However,
intent is not an element of a charge of failure to follow instructions, and an
agency may establish the charge without proving intent to willfully disobey the
instructions. Powell, 122 M.S.P.R. 60, ¶ 5; Hamilton v. U.S. Postal Service,
71 M.S.P.R. 547, 555-57 (1996). Accordingly, we agree with the administrative
judge that the agency proved the second element and, thus, that it proved the
charge of failure to follow instructions. 4 ID at 11.
The administrative judge correctly sustained the lack of candor charge.
The administrative judge found that the agency sufficiently proved that the
appellant lacked candor when she denied forwarding the management-only email
during the OSI investigation. ID at 11-15. The appellant challenges this finding,
arguing that because she was not aware that she forwarded the email to the
non-management individual, she did not knowingly provide inaccurate or
incomplete information. PFR File, Tab 1 at 8-11. We are unpersuaded.
4
As the administrative judge noted, the agency only sustained specification two of the
charge of failure to follow instructions. IAF, Tab 5 at 14. Nonetheless, when more
than one specification supports a single charge, proof of one or more, but not all, of the
supporting specifications is sufficient to sustain the charge. Burroughs v. Department
of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990).
6
Lack of candor “is a broader and more flexible concept” than falsification.
Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 23 (2016) (citing
Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002)), clarified
by Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-24.
However, although lack of candor does not require an “affirmative
misrepresentation,” it “necessarily involves an element of deception.” Id. (citing
Ludlum, 278 F.3d at 1284-85). A lack of candor charge requires proof of the
following elements: (1) the employee gave incorrect or incomplete information;
and (2) she did so knowingly. Id.
As to the first element, we agree with the administrative judge that the
appellant provided incorrect information when questioned about whether she had
forwarded an email to a non-management individual. ID at 14. The record
reflects that, when asked by the OSI investigators whether she had forwarded the
email to a non-management individual, she responded “[t]o the best of my
recollection . . . I did not . . . . I sent it to my home [email address] and I don’t
recall forwarding it to anybody else.” IAF, Tab 5 at 145. She further stated, “I
don’t recall doing it and I don’t believe I ever would.” Id. at 146. In a
subsequent portion of the interview, the appellant again denied knowledge of
forwarding the email, stating “[n]ot from me, I don’t believe so, not that I’m
aware of.” Id. at 165. The record reflects that the appellant did in fact forward
the email to a non-management individual. IAF, Tab 10 at 6-7. Accordingly, we
agree with the administrative judge that her statement denying such conduct was
incorrect.
Regarding the second element, the crux of the appellant’s argument on
review is that because she did not intend to forward the email, and was unaware
that she had done so, she did not knowingly provide incorrect or incomplete
information to the OSI investigators. PFR File, Tab 1 at 8-11. The
administrative judge found that the appellant’s statements to the OSI investigators
were not merely incorrect but also involved an element of deception in that when
7
she responded, the appellant knew that she had forwarded an email to a
non-management individual. ID at 14. In reaching this finding, the
administrative judge made comprehensive credibility findings and specifically did
not credit the appellant’s version of the events. ID at 9-11, 13. 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; the Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002). The Board may overturn an administrative
judge’s demeanor-based credibility determinations only when they are
incomplete, inconsistent with the weight of the evidence, and do not reflect the
record as a whole. Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8
(2004).
Specifically, the administrative judge considered, but did not credit, the
appellant’s testimony that she was very distracted due to an ongoing divorce and
problems with her daughter and that she must have accidentally forwarded the
email instead of putting it in a folder as intended. ID at 9-11. The administrative
judge found it inherently improbable that the appellant, while attempting to put
the email in a folder, would instead click forward, type something on the
keyboard to populate the non-management individual’s email, and click send, all
without noticing. ID at 10-11. Moreover, the administrative judge acknowledged
the lack of apparent motive but found it immaterial to the issue of whether the
appellant’s explanations were credible. ID at 11. We find that the administrative
judge properly considered the record as a whole and made reasoned conclusions,
and the appellant has not identified sufficiently sound reasons to overcome the
special deference given to the administrative judge’s demeanor-based credibility
determinations. Faucher, 96 M.S.P.R. 203, ¶ 8; see also Purifoy v. Department of
Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016) (finding that the Board
8
must give deference to an administrative judge’s demeanor-based credibility
determinations).
Thus, in light of the finding that the appellant intentionally forwarded the
email, we agree that she knowingly gave incorrect or incomplete information to
the OSI investigators when she denied sending the email, denied recalling doing
so, and asserted that she did not believe she ever would. Accordingly, the
administrative judge correctly sustained the lack of candor charge.
We agree with the administrative judge that the appellant failed to establish her
affirmative defenses.
The appellant argues that the agency’s removal action constituted
whistleblower retaliation and reprisal for prior EEO activity. PFR File, Tab 1
at 12-13. The administrative judge considered both affirmative defenses but
found that the appellant failed to meet her burden of proving any violations. ID
at 15-27.
The appellant failed to establish her affirmative defense of whistleblower
retaliation.
To prevail on an affirmative defense of whistleblower reprisal, once the
agency proves its charges by a preponderance of the evidence, the appellant must
demonstrate by preponderant evidence that she made a protected disclosure or
engaged in protected activity and that the disclosure or activity was a contributing
factor in the adverse action. Shibuya v. Department of Agriculture, 119 M.S.P.R.
537, ¶ 19 (2013). If the appellant establishes a protected disclosure or activity
and contributing factor by preponderant evidence, then the burden of persuasion
shifts to the agency to prove by clear and convincing evidence that it would have
taken the same action in the absence of the appellant’s protected disclosure or
activity. 5 U.S.C. § 1221(e)(2); Shibuya, 119 M.S.P.R. 537, ¶ 32.
Here, the administrative judge found that the appellant met her burden of
proving that she made protected disclosures and engaged in protected activity,
and that these disclosures and activity were a contributing factor in the agency’s
9
decision to remove her. 5 ID at 15-22. The parties do not challenge these findings
on review, and we decline to disturb them. The administrative judge additionally
found that the agency proved, by clear and convincing evidence, that it would
have taken the same personnel action in the absence of the appellant’s disclosures
and activity. ID at 22-24. The appellant challenges the administrative judge’s
weighing of the various factors in reaching this conclusion. PFR File, Tab 1
at 12-13. Although we agree with the appellant that the administrative judge did
not correctly weigh the relevant factors, we nonetheless agree with the
administrative judge’s determination that the agency met its burden of proof.
In determining whether the agency has carried its burden, the Board will
consider all the relevant facts and circumstances, including the following factors:
(1) the strength of the agency’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of agency officials involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblower but who are otherwise similarly situated.
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
Regarding the first factor, the administrative judge found that the agency
had strong evidence in support of the appellant’s removal. ID at 22-23. We
agree with the administrative judge. The record evidence clearly established that
the appellant failed to follow instructions when she forwarded the email to a
non-management individual. IAF, Tab 10 at 6-7. The Board has found that when
an agency proves its charges, as is the case here, this is a factor weighing in favor
of agency on the clear and convincing issue. Shibuya, 119 M.S.P.R. 537, ¶ 36;
see also Pedeleose v. Department of Defense, 110 M.S.P.R. 508, ¶ 24 (finding the
agency met its clear and convincing burden by, among other things, providing
5
The administrative judge found that the appellant alleged that she disclosed voucher
fraud to the agency’s Office of Inspector General (OIG); disclosed to the OIG, Office of
Special Counsel, and the agency’s OSI that the proposing official involved in the prior
removal appeal engaged in inappropriate nepotism; and disclosed wrongdoing by her
ex-husband, who was not an agency employee, to various OIGs. ID at 18-19.
10
sufficient evidence to support the underlying charges), aff’d, 343 F. App’x 605(Fed. Cir. 2009). Accordingly, because both charges were sustained and in light
of the record and testimonial evidence supporting these charges, we agree with
the administrative judge that the agency had strong evidence in support of its
action.
As to the second factor, the administrative judge found that the deciding
official worked at a separate facility from the appellant, did not know the
appellant or anyone involved with her whistleblowing, and only became aware of
the appellant’s whistleblowing from the appellant’s written reply to the proposed
removal. ID at 23. Other than a professional retaliatory motive, the
administrative judge found no motive from the deciding official to retaliate, and
thus concluded that this factor strongly supported the agency’s decision to
remove the appellant. ID at 23-24. The appellant challenges the administrative
judge’s analysis and conclusion that this factor weighed in favor of the agency.
PFR File, Tab 1 at 12. As explained below, we find that the deciding official had
some motive to retaliate.
In Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), the
court found that “an agency official’s merely being outside that whistleblower’s
chain of command, not directly involved in alleged retaliatory actions, and not
personally named in the whistleblower’s disclosure is insufficient to remove the
possibility of a retaliatory motive or retaliatory influence on the whistleblower’s
treatment.” Id. at 1371. Thus, when applying the second factor, “the Board will
consider any motive to retaliate on the part of the agency official who ordered the
action, as well as any motive to retaliate on the part of other agency officials who
influenced the decision.” Id. The court additionally recognized that individuals
“responsible for the agency’s performance overall may well be motivated to
retaliate even if they are not directly implicated by the disclosures, and even if
they do not know the whistleblower personally, as the criticism reflects on them
in their capacities as managers and employees.” Id. at 1370; see also Phillips v.
11
Department of Transportation, 113 M.S.P.R. 73, 83 (2010) (finding that
comments generally critical of agency’s leadership would reflect poorly on
officials responsible for monitoring the performance of the agency).
The appellant asserts that the proposing and deciding officials involved in
the agency’s first removal action, which was subsequently rescinded, were aware
of her whistleblowing and thus had a motive to retaliate. PFR File, Tab 1 at 12.
She further asserts that the agency transferring the case to a different facility does
not absolve the retaliatory motive, especially given that the deciding official in
the instant removal action knew and interacted with the individuals involved in
the first removal action. Id. Indeed, the evidence suggests that one of the
appellant’s disclosures specifically alleged that the proposing official for the first
removal action engaged in fraud, mismanagement, nepotism, and created a hostile
working environment. IAF, Tab 14 at 42-51. 6 Moreover, the deciding official
knew, via the appellant’s written response to the proposed removal, that the
appellant had engaged in numerous forms of whistleblowing against the first
proposing and deciding officials, as well as the agency in general. IAF, Tab 5
at 34-35.
Accordingly, we agree with the appellant that, at a minimum, the deciding
official here had some motive to retaliate. See Whitmore, 680 F.3d at 1370(recognizing that individuals responsible for the agency’s performance overall
may have a motive to retaliate as whistleblowing criticism reflects on them in
their capacities as managers and employees). This is bolstered by the fact that
one of the disclosures at issue here directly implicated the first proposing official.
See id. at 1371 (recognizing that the Board must consider any motive to retaliate
6
As the administrative judge noted, the attachments associated with the appellant’s
written reply to the proposed removal, which contains the details of her disclosures
regarding the first proposing official, were not included in conjunction with the written
reply in the record. ID at 18. However, the attachments, as referenced in her written
reply, are included in the appellant’s prehearing submissions. IAF, Tab 5 at 34 -35,
Tab 14 at 42-71. As further evidence that the deciding official here received the
attachments, she specifically references the nepotism disclosure in the removal
decision. IAF, Tab 5 at 16.
12
on the part of other agency officials who may have influenced the decision).
Nonetheless, beyond their motives as individuals responsible for the agency’s
performance, we find that the proposing and deciding officials here lacked a
strong motive to retaliate because the whistleblowing was not directed at them
and they did not work at the facility about which the appellant made disclosures.
See Phillips, 113 M.S.P.R. 73, ¶ 29 (finding that, although one individual had a
strong retaliatory motive, two other individuals more heavily involved in the
agency’s adverse action lacked such a strong motive). In light of the above, we
modify the administrative judge’s analysis and find that the agency officials
involved in the instant removal action had some motive to retaliate.
Finally, regarding the third factor, the administrative judge found that the
absence of any evidence that the agency treated similarly situated
nonwhistleblowers more favorably rendered the factor neutral. ID at 24. The
appellant argues that the agency’s failure to present comparator evidence should
weigh against the agency. PFR File, Tab 1 at 12-13. Although there is no
affirmative burden on the agency to produce evidence with respect to each factor,
to the extent such comparator evidence exists, the agency is required to come
forward with all reasonably pertinent evidence relating to the third factor.
Whitmore, 680 F.3d at 1374. An agency’s failure to do so may be at its own
peril. Id. As a practical matter, the agency has far greater access to and control
over evidence of prior disciplinary actions taken against its employees than a
whistleblower-employee typically does. Id.According to the proposed removal, the agency was unable to find specific
comparative discipline but stated that “similar comps found are consistent with
the proposed penalty” of removal. IAF, Tab 5 at 48. It appears that the agency
provided several other disciplinary actions brought by the agency for similar
misconduct. IAF, Tab 19 at 46-91, 99-106. The administrative judge did not
address these alleged comparators. Although several of the alleged comparator
individuals held the same title as the appellant, they appear to have worked in
13
different agency locations and with different chains of command. Id. at 46, 51,
60. Thus, it does not appear that they qualify as similarly situated
nonwhistleblowers for purposes of this factor. See Whitmore, 680 F.3d at 1373(noting that, for other employees to be deemed similarly situated, all relevant
aspects of the appellant’s employment situation must be nearly identical to those
of the comparative employees). Regardless, we find that the lack of comparator
evidence cannot favor the agency. See id. at 1374 (finding an agency’s failure to
produce comparator evidence may be at the agency’s peril).
Overall, we find that the strength of the agency’s evidence in support of its
action outweighs any slight motive to retaliate and lack of comparator evidence.
See Phillips, 113 M.S.P.R. 73, ¶ 29 (finding the strength of the evidence in
support of the agency’s action outweighed the motive to retaliate); see also
Pedeleose, 110 M.S.P.R. 508, ¶ 24 (finding the clear and convincing burden met
when the agency established a strong case in support of its action and the absence
of a strong motive to retaliate by the officials responsible for the action).
Accordingly, we agree with the administrative judge that the agency met its clear
and convincing burden, and that accordingly, the appellant’s affirmative defense
of whistleblower retaliation must fail.
The appellant failed to establish her affirmative defense of reprisal for
prior EEO activity.
The appellant claimed that her removal was in retaliation for filing several
EEO complaints stemming from an allegation of disability discrimination and
harassment. IAF, Tab 5 at 34, Tab 13 at 13-14; Kohlhapp v. Department of
Homeland Security, MSPB Docket No. DE-0752-19-0202-I-1, Tab 18 at 5-6. The
administrative judge found that the appellant failed to establish that her prior
EEO activity was a motivating factor in the agency’s removal decision. ID
at 24-27. Although we agree with the administrative judge’s conclusion that the
appellant failed to establish her affirmative defense, we clarify that the proper
standard to apply in claims involving the protected activity at issue here is the
14
“but-for” causation standard, and we modify the initial decision accordingly.
Pridgen, 2022 MSPB 31, ¶ 47. Because we find that the appellant cannot meet
the lesser motivating factor standard, we conclude that she does not meet the
“but-for” standard. The outcome therefore remains the same.
The appellant alleged that she filed numerous EEO complaints against the
proposing official in the agency’s first removal action, in 2008 and 2011, in
which that proposing official was involved in the mediation. IAF, Tab 13 at 20.
Additionally, in December 2018, the appellant filed a formal EEO complaint
against the proposing official. Id. at 13-14, 20. The appellant informed the
deciding official in the instant appeal of her reprisal allegation in her reply to the
proposed removal. IAF, Tab 5 at 34. However, the deciding official in the
instant appeal was not named in any of the appellant’s EEO complaints, and there
is no evidence of any ambiguous statements or comments that would suggest a
retaliatory intent. Moreover, as discussed above, the agency’s reason for the
removal was based on strong evidence, and the record supports a finding that the
appellant engaged in the alleged misconduct. Therefore, the only indication that
the appellant’s prior EEO activity was even a factor in the removal is the
temporal proximity between the EEO complaint and her removal. We find that
this temporal proximity alone does not establish that the protected activity was a
motivating factor, let alone establish that it was a “but-for” cause of her removal.
The appellant does not challenge any of the specifics of the administrative
judge’s findings, but rather, she merely asserts that her arguments regarding
whistleblower retaliation are applicable to her EEO reprisal arguments. PFR File,
Tab 1 at 13. We find that this is insufficient to disturb the administrative judge’s
findings. Accordingly, the appellant has not established her affirmative defense
of reprisal for prior EEO activity.
15
The administrative judge correctly found that the agency established nexus and
that the penalty of removal was reasonable.
The administrative judge found a nexus between the charged misconduct
and the efficiency of the service. ID at 27-28. The appellant asserts that because
the agency cannot prove its charge of lack of candor, a nexus does not exist. PFR
File, Tab 1 at 11-12. We are unpersuaded. As set forth above, we agree with the
administrative judge that the agency sufficiently established both charges.
Moreover, the Board has found a nexus established based on a charge of failure to
follow instructions as it relates directly to the efficiency of the appellant’s
service. Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 24 (2014).
As for the penalty, the administrative judge found that the deciding official
considered the relevant aggravating and mitigating factors and that the penalty of
removal was within the tolerable limits of reasonableness. ID at 28-31. The
appellant asserts that the penalty is excessive. PFR File, Tab 1 at 13-14.
When, as here, all of 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 factors and exercised management discretion within
tolerable limits of reasonableness. Archerda, 121 M.S.P.R. 314, ¶ 25. 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.After reviewing the record, we find that the deciding official properly
considered the relevant factors in making her penalty determination. IAF, Tab 5
at 14-16, 22-25. The appellant argues that there was no evidence of intent, which
should have been considered a mitigating factor. PFR File, Tab 1 at 13-14; see
Arena v. U.S. Postal Service, 121 M.S.P.R. 125, ¶ 6 (2014) (noting that, in
evaluating the penalty, the Board will consider, first and foremost, the nature and
seriousness of the misconduct, including whether the offense was intentional),
aff’d per curiam, 617 F. App’x 996 (Fed. Cir. 2015) (Table). As discussed above,
16
we defer to the administrative judge’s credibility finding that the appellant
intended to forward the email in question. ID at 11. The appellant further argues
that, even if the forwarding were intentional, there must be an explanation of the
intent to warrant using it as an aggravating factor. PFR File, Tab 1 at 14. Indeed,
both the proposing and deciding officials here found the appellant’s misconduct
to be intentional and considered this in their penalty analysis. IAF, Tab 5
at 14-15, 47. Regardless, the Board has held that, if an agency proves an
employee’s failure to follow instructions was intentional rather than merely
negligent, it is free to use that fact as an aggravating factor in the penalty
selection. Hamilton, 71 M.S.P.R. at 556. Accordingly, the deciding official did
not err in considering this factor as aggravating. Finally, the appellant again
claims that because the lack of candor charge should not be sustained, the
removal penalty is excessive. As discussed above, we find that the administrative
judge correctly sustained the lack of candor charge. The appellant points to no
other relevant mitigating or aggravating factors that the deciding official failed to
properly consider. Accordingly, we find that the penalty of removal was within
the tolerable limits of reasonableness. Archerda, 121 M.S.P.R. 314, ¶ 27.
NOTICE OF APPEAL RIGHTS 7
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
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.
17
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
18
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
19
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
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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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
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.
21
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.