Richard Tyner v. Department of Agriculture

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD TYNER, DOCKET NUMBER
Appellant, DC-0752-16-0098-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: September 7, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David A. Branch, Esquire, Washington, D.C., for the appellant.
Martin A. Gold, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his 30‑day suspension. Generally, we grant petitions such as this one
only when: 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
to: (1) to amend and supplement the administrative judge’s analysis regarding the
charge of misrepresentation or concealment of facts on official documents;
(2) find that the agency proved a nexus between the sustained charge and the
efficiency of the service; and (3) incorporate the standards set out in the Board’s
decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), and
supplement the administrative judge’s analysis regarding the appellant’s
affirmative defense of discrimination based on race. Except as expressly
modified by this Final Order, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant is employed as a Materials Handler with the agency’s
Office of Operations Management Services in Beltsville, Maryland. Initial
Appeal File (IAF), Tab 1 at 1, Tab 5 at 28, 31; Hearing Transcript (HT) at 5
(testimony of the appellant). On October 3, 2014, the agency proposed the
appellant’s removal based on three charges: (1) fighting, attempting to inflict
bodily harm on duty; (2) creating a disturbance or disruption in the workplace;
and (3) misrepresentation or concealment of facts on official documents. IAF,
Tab 5 at 39‑43.
¶3 The charges of fighting, attempting to inflict bodily harm on duty, and
creating a disturbance or disruption in the workplace arose from a verbal and
3
physical altercation between the appellant and a contractor, J.L., at the agency’s
Beltsville Service Center Warehouse on August 18, 2014. Id. at 39‑40; HT at 8
(testimony of the appellant). The agency alleged that, after J.L. refused to
perform a work assignment and made racial comments to the appellant, the
appellant and J.L. engaged in a verbal altercation and pushed one another, and the
appellant struck J.L. in the face. IAF, Tab 5 at 39‑40. Subsequently, the
appellant went outside to smoke a cigarette, and J.L. followed him and struck the
appellant on the side of the head with the claw end of a hammer, causing the
appellant to bleed on the warehouse steps. Id. at 40; HT at 13‑14, 32‑33, 35
(testimony of the appellant).
¶4 The charge of misrepresentation or concealment of facts on official
documents arose from a Safety/Environment Incident Report (the incident report)
that the appellant prepared and submitted on August 20, 2014, two days after the
altercation with J.L. IAF, Tab 5 at 40, 69. In this incident report, the appellant
inaccurately reported that he incurred his August 18, 2014 head injury when he
was accidentally hit on the side of the head with the end of a forklift while
dumping furniture into a compactor. Id. at 69.
¶5 After the appellant, through his union, presented an oral response to the
notice of proposed removal, IAF, Tab 10 at 5‑6, the deciding official sustained
all of the charges, but mitigated the penalty to a 30‑day suspension, IAF, Tab 16
at 5‑8.
¶6 The appellant filed a formal equal employment opportunity (EEO)
complaint regarding his suspension, among other things. IAF, Tab 1 at 7. After
the agency issued a final agency decision finding no discrimination, id. at 7‑31,
the appellant filed a Board appeal challenging his suspension, id. at 4, and raised
affirmative defenses of discrimination based on race (Caucasian) and national
origin (Italian), IAF, Tab 12, Tab 17 at 4.
4
¶7 After holding the appellant’s requested hearing, IAF, Tab 1 at 2, the
administrative judge found that the agency failed to prove the charges of fighting,
attempting to inflict bodily harm on duty, and creating a disturbance or disruption
in the workplace. 2 IAF, Tab 23, Initial Decision (ID) at 3‑10. She found the
appellant’s testimony that he did not strike or push J.L. to be more credible than
the testimony of two contractors, M.W. and R.P., who testified that the appellant
did so. ID at 6‑10; IAF, Tab 10 at 5; HT at 10, 15 (testimony of the appellant),
73‑74, 77 (testimony of R.P.), 83‑84, 87‑89 (testimony of M.W.). Therefore, the
administrative judge concluded that any fighting or attempting to inflict bodily
harm on duty or creating a disturbance or disruption in the workplace was most
likely the result of J.L.’s conduct, rather than the appellant’s. ID at 10.
¶8 The administrative judge found that the agency proved the charge of
misrepresentation or concealment of facts on official documents. ID at 10‑13.
She found that the appellant misrepresented the cause of his injury on the incident
report and concealed that J.L. had assaulted him with a hammer. ID at 12. The
administrative judge further found that the appellant failed to prove his
affirmative defenses of discrimination based on race and national origin.
ID at 14-16. Finally, she found that the penalty of a 30‑day suspension was
within the bounds of reasonableness for the sole sustained charge. ID at 17‑19.
¶9 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has responded in opposition to the
petition for review. PFR File, Tab 3.
2
The agency does not challenge the administrative judge’s findings that it failed to
prove these charges on review, and we discern no reason to disturb these findings.
Petition for Review File, Tab 3 at 4, 11; ID at 3‑10.
5
DISCUSSION OF ARGUMENTS ON REVIEW
The charge of misrepresentation or concealment of facts on official documents
should be divided into two separate charges.
¶10 On review, the appellant contests the administrative judge’s finding that the
agency proved the charge of misrepresentation or concealment of facts on official
documents. PFR File, Tab 1 at 5‑6. For reasons not raised by either party on
review, we find that the administrative judge erred in analyzing this charge,
which she construed as a single charge of misrepresentation or falsification.
See ID at 12.
¶11 In determining how charges are to be construed, the Board will examine the
structure and language of the proposal notice. Tom v. Department of the
Interior, 97 M.S.P.R. 395, ¶ 17 (2004). In this regard, an adverse action charge
usually consists of two parts: (1) a name or label that generally characterizes the
misconduct; and (2) a narrative description of the actions that constitute the
misconduct. Walker v. Department of the Army, 102 M.S.P.R. 474, ¶ 7 (2006).
The Board may not split a single charge into several independent charges and
then sustain one of the newly formulated charges, which represents only a portion
of the original. Burroughs v. Department of the Army, 918 F.2d 170, 172
(Fed. Cir. 1990 ). However, the prohibition against charge-splitting depends on
whether the charge is based on a single act or on more than one act.
Walker, 102 M.S.P.R. 474, ¶ 7. A charge that is based on more than one act can
be divided into multiple specifications or charges, each corresponding to the
separate acts alleged. Id.
¶12 Here, the agency labeled the charge as “[m]isrepresentation or
[c]oncealment” of facts on official documents and, in the narrative description of
the charge, alleged that the appellant: (1) misrepresented the facts when he
asserted that his injury was caused by being hit on the head with a forklift; and
(2) concealed the fact that he had been in a fight with J.L. and had been hit on the
head with a hammer. IAF, Tab 5 at 40. Thus, we find that the agency charged
6
the appellant with having committed two separate acts of misconduct
(misrepresenting facts and concealing facts on the incident report) that are not
dependent on each other, have different elements of proof, and do not comprise a
single inseparable act. See, e.g., Boo v. Department of Homeland
Security, 122 M.S.P.R. 100, ¶¶ 12‑14 (2014) (distinguishing the elements of
proof for a charge of falsification or misrepresentation from those of a charge of
lack of candor). Accordingly, we modify the initial decision to find that, rather
than a single charge of misrepresentation or falsification, the agency’s charge of
“Misrepresentation or Concealment of Facts on Official Documents” consists of
two separate charges, one of which alleges that the appellant misrepresented facts
on an official document, and the other of which alleges that he concealed facts on
an official document. Walker, 102 M.S.P.R. 474, ¶ 7 (finding that an agency’s
charge constituted two separate charges when it contained two separate acts of
misconduct that were not dependent on each other and that had different
elements); see Texeira v. U.S. Postal Service, 267 F. App’x 950, 951‑52
(Fed. Cir. 2008) (finding that the Board properly split a charge of “Unacceptable
Conduct: Falsification in Recording Time/Failure to Follow Proper Timekeeping
Procedures” into two separate charges because these labels were separate offenses
with different elements of proof). 3 We will address each charge individually.
The administrative judge erred in finding that the agency proved a charge
of misrepresentation.
¶13 The Board has found that charges of misrepresentation and falsification
require the same elements of proof. Boo, 122 M.S.P.R. 100, ¶ 10 (citing
Guerrero v. Department of Veterans Affairs, 105 M.S.P.R. 617, ¶ 9 (2007)). To
establish a charge of falsification or misrepresentation, the agency must prove by
preponderant evidence that the appellant knowingly supplied incorrect
3
Although Texeira is an unpublished decision, the Board may rely on unpublished
Federal Circuit decisions when, as here, it finds the court’s reasoning persuasive.
Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).
7
information and that he did so with the intention of defrauding the agency.
O’Lague v. Department of Veterans Affairs, 123 M.S.P.R. 340, ¶ 6 (2016);
Boo, 122 M.S.P.R. 100, ¶ 10. The intent element requires two distinct showings:
(1) that the appellant intended to deceive or mislead the agency; and (2) that he
intended to defraud the agency for his own private material gain. Leatherbury v.
Department of the Army, 524 F.3d 1293, 1300 (Fed. Cir. 2008);
O’Lague, 123 M.S.P.R. 340, ¶ 6; Boo, 122 M.S.P.R. 100, ¶¶ 11–12.
¶14 Here, although the administrative judge analyzed the charge as a charge of
misrepresentation or falsification, she failed to address the second component of
the intent element, which requires the agency to prove that the appellant intended
to defraud the agency for his own private material gain. ID at 12; see
Boo, 122 M.S.P.R. 100, ¶ 12 (finding that to establish a charge of falsification,
misrepresentation, or lying, an agency must prove that an employee intended to
defraud the agency for his own private material gain). We find that the agency
failed to prove this element of a misrepresentation charge.
¶15 While the definition of “private material gain” is quite broad and is not
limited to monetary gains, see Boo, 122 M.S.P.R. 100, ¶ 13, here, the agency
did not present evidence regarding any form of private material gain that the
appellant hoped to achieve in submitting the inaccurate incident report.
Cf. Ahles v. Department of Justice, 768 F.2d 327, 330 (Fed. Cir. 1985) (finding
that an agency proved intent to defraud where an appellant testified that he
submitted false information to influence a pending disciplinary proceeding
against him). The appellant asserted that he provided the incorrect information
on the incident report because he knew that J.L. was on parole and he did not
want to cause J.L. to be sent back to prison. IAF, Tab 10 at 5, Tab 12 at 6,
Tab 17 at 3; HT at 39 (testimony of the appellant); see PFR File, Tab 1 at 6.
Although it is not clear why the appellant would want to protect J.L. from
returning to prison after J.L. attacked him with a hammer, the agency did not
challenge the appellant’s testimony to this effect on cross‑examination at the
8
hearing, or present evidence regarding any other reason that the appellant
misrepresented facts in the incident report. 4 Regardless of whether the
appellant’s explanation for his actions was ultimately credible, the burden of
proof of the charge lies with the agency, and the agency did not present any
evidence to prove the element of private material gain. See 5 U.S.C.
§ 7701(c)(1)(B); 5 C.F.R. § 1201.56(b)(1)(ii).
¶16 For this reason, we find that the agency failed to prove the charge of
misrepresentation. See Parker v. Department of Veterans Affairs, 122 M.S.P.R.
353, ¶ 15 (2015) (finding that an agency failed to prove a specification of filing
false charges when it did not demonstrate that an appellant made a false
representation with the intent to defraud, deceive, or mislead the agency for her
own personal material gain); Boo, 122 M.S.P.R. 100, ¶ 15 (finding that a charge
of falsification could not be sustained when the record lacked any evidence that
an appellant intended to defraud, deceive, or mislead the agency for his own
private material gain, but instead indicated that he may have acted to assist
another individual). Accordingly, we modify the initial decision to find that the
agency did not prove a misrepresentation charge.
The agency proved the charge of concealment of facts on official documents.
¶17 We find that the agency proved the charge of concealment of facts on
official documents, which we construe as a lack of candor charge. While
falsification involves an affirmative misrepresentation, and requires intent to
deceive, lack of candor, by contrast, is a broader and more flexible concept whose
contours and elements depend on the particular context and conduct involved.
See Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002). For
example, lack of candor need not involve an affirmative misrepresentation, but
“may involve a failure to disclose something that, in the circumstances, should
have been disclosed to make the statement accurate and complete.” Id.; see
4
The appellant testified that he did not file a workers’ compensation claim regarding
his injury. HT at 59 (testimony of the appellant).
9
O’Lague, 123 M.S.P.R. 340, ¶ 16 (finding that, although an agency may base a
lack of candor charge on an affirmative misrepresentation, it need not do so).
Furthermore, while lack of candor “necessarily involves an element of deception,
‘intent to deceive’ is not a separate element of the offense—as it is for
falsification.” Ludlum, 278 F.3d at 1284–85. Thus, of relevance here, a lack of
candor charge does not require the agency to prove that the appellant intended to
defraud, deceive, or mislead the agency for his private material gain. See
Boo, 122 M.S.P.R. 100, ¶ 14 (distinguishing a lack of candor charge from charges
of falsification, misrepresentation, or lying).
¶18 Instead, a lack of candor charge requires proof of the following elements:
(1) that the appellant gave incorrect or incomplete information; and (2) that he
did so knowingly. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17
(2016). Here, we find that the agency met this burden of proof. The appellant
did not dispute that the information that he provided in the incident report was
incorrect and asserted that he provided the incorrect information because he
did not want to cause J.L. to be sent back to prison. 5 IAF, Tab 10 at 5, Tab 12
at 6, Tab 17 at 3; HT at 39 (testimony of the appellant); see PFR File, Tab 1 at 6.
Thus, the appellant effectively admitted that he knowingly provided the agency
with incorrect information to prevent the agency from learning the true
circumstances of his injury.
¶19 We have considered the appellant’s argument on review that he provided
inaccurate information on the incident report because he was not thinking clearly
5
In its opposition to the petition for review, the agency also discusses several instances
where the appellant orally made incorrect statements about the cause of his head injury.
PFR File, Tab 3 at 7, 9-10. However, the agency did not charge the appellant with
orally providing incorrect information about the cause of his injury. IAF, Tab 5
at 39-40. The Board is required to review the agency’s decision on an adverse action
solely on the grounds invoked by the agency and may not substitute what it considers to
be a more adequate or proper basis. Fargnoli, 123 M.S.P.R. 330, ¶¶ 7, 15 (citing
Gottlieb v. Veterans Administration, 39 M.S.P.R. 606, 609 (1989)). Therefore, we
have not considered the agency’s assertions on review that the appellant made incorrect
oral statements about the cause of his injury.
10
due to his head injury, and find it unpersuasive. PFR File, Tab 1 at 5‑6. The
administrative judge considered this same assertion below and properly concluded
that it lacked merit. ID at 13. To resolve credibility issues, such as the one
presented here, an administrative judge must state which version of each disputed
factual issue she believes and explain in detail why she found the chosen version
more credible, considering factors including the statement’s consistency with
other evidence and the inherent improbability of the witness’s version of events.
See Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). Although
the administrative judge did not explicitly reference the Hillen factors in the
initial decision, it is evident from her analysis that she applied the relevant
factors and found the appellant’s assertion to be inconsistent with other evidence
and inherently improbable. ID at 13.
¶20 As the administrative judge correctly noted, although the appellant’s injury
was serious, he was able to clean himself up and return to work on the day of his
injury. ID at 13; HT at 35‑36 (testimony of the appellant). Furthermore, the
appellant did not complete the incident report at issue until 2 days after he
sustained his injury, IAF, Tab 5 at 69, and continued to commute to work and
perform his assigned duties in the interim, ID at 13. Finally, we discern no error
in the administrative judge’s consideration of the fact that the appellant failed to
submit medical documentation to substantiate his claim that he was not thinking
clearly as a result of his injury. 6 ID at 13. In sum, the administrative judge made
a reasonable credibility determination based on a review of the record as a whole,
6
Moreover, although the appellant testified that he was “not thinking straight” and “not
thinking correctly” due to his injury, the relevant inquiry is whether he knowingly
provided incorrect information, and he never claimed that his injury affected him to the
point that he was unaware that the information he provided to the agency was incorrect.
HT at 39‑40 (testimony of the appellant).
11
and we find no basis to disturb it on review. 7 See Haebe v. Department of
Justice, 288 F.3d 1288, 1301‑02 (Fed. Cir. 2002) (holding that the Board may
overturn an administrative judge’s credibility determinations only when it has
“sufficiently sound” reasons for doing so); Little v. Department of
Transportation, 112 M.S.P.R. 224, ¶4 (2009) (finding that, where an
administrative judge has heard live testimony, her credibility determinations must
be deemed to be at least implicitly based upon the demeanor of the
witnesses); see also Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105–06
(1997) (finding no reason to disturb an administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions).
¶21 For these reasons, we modify the initial decision to find that the agency
proved the charge of concealment of facts on official documents.
The agency proved a nexus between the sustained misconduct and the efficiency
of the service.
¶22 The administrative judge did not make a finding regarding whether the
agency proved a nexus between the appellant’s sustained misconduct and the
efficiency of the service. See ID. However, there is sufficient nexus between an
employee’s conduct and the efficiency of the service where the conduct occurred
at work. Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006). Here,
the appellant completed the inaccurate incident report at issue while he was at
7
We also have considered and rejected the appellant’s argument on review that the
administrative judge was obligated to credit his testimony that his injury affected his
decision to provide incorrect information in the incident report because she previously
found him to be a credible witness regarding his testimony that he did not strike or push
J.L. PFR File, Tab 1 at 5. It is well established that an appellant’s testimony may be
credible regarding some issues but not others. Gill v. Department of Defense,
92 M.S.P.R. 23, 27 (2002) (finding that the fact that an individual’s testimony is found
not credible regarding one issue does not necessarily mean that his testimony is not
credible regarding other issues); Taylor v. Department of the Treasury, 34 M.S.P.R.
495, 499 (1987) (finding that a witness can be incredible on some issues yet credible
on others).
12
work, and the purpose of the incident report was for the agency to keep a record
of safety issues that occurred at work. IAF, Tab 5 at 71; HT at 109-13 (testimony
of Safety Officer J.B.). Moreover, the Board has found that an employee’s lack
of candor directly impacts the efficiency of service. Ludlum v. Department of
Justice, 87 M.S.P.R. 56, ¶ 28 (2000), aff’d, 278 F.3d 1280 (Fed. Cir. 2002). For
these reasons, we modify the initial decision to find that the agency proved a
nexus between the sustained charge of concealment of facts on official documents
and the efficiency of the service.
The appellant failed to prove his affirmative defense of discrimination based
on race.
¶23 On review, the appellant contests the administrative judge’s findings that he
failed to prove his affirmative defense of discrimination based on race. 8
PFR File, Tab 1 at 7‑8. The administrative judge found that the appellant did not
prove that the agency discriminated against him based on race under either a
disparate treatment theory or with direct evidence. ID at 14‑16. Having
considered the appellant’s arguments on review, although we modify the initial
decision to supplement the administrative judge’s analysis, we agree with her
ultimate conclusion that the appellant failed to prove this affirmative defense.
ID at 14‑16.
¶24 Several months before the initial decision in the instant appeal was issued,
the Board issued its decision in Savage, which clarified the burdens of proof
under which the Board analyzes discrimination and retaliation
claims, 122 M.S.P.R. 612, ¶¶ 42–43, 46, 51. Where an appellant asserts an
8
The appellant does not challenge the administrative judge’s finding that he failed to
prove his affirmative defense of discrimination based on national origin, and we discern
no reason to disturb that finding on review. PFR File, Tab 1; ID at 14‑16. As
discussed above, in analyzing the appellant’s claims of discrimination, the
administrative judge did not apply the analytical framework in Savage, 122 M.S.P.R.
612, ¶¶ 42–43, 46, 51. However, we find that applying the analytical framework in
Savage would not change the result in this case.
13
affirmative defense of discrimination or retaliation, the Board, when reviewing
the evidence of discrimination or retaliation, first will inquire whether the
appellant has shown by preponderant evidence that the prohibited consideration
was a motivating factor in the contested personnel action. Id., ¶ 51. If the
appellant meets that burden, the Board then will inquire whether the agency has
shown by preponderant evidence that the action was not based on the prohibited
personnel practice, i.e., that it still would have taken the contested action in the
absence of the discriminatory motive, and, if the Board finds that the agency has
made that showing, its violation of 42 U.S.C. § 2000e–16 will not require reversal
of the action. Savage, 122 M.S.P.R. 612, ¶ 51.
¶25 Here, although the initial decision was issued several months after the
Board issued its decision in Savage, the administrative judge did not reference or
apply Savage in the initial decision. 9 ID at 14-16. Nevertheless, for the reasons
discussed below, we find that applying the analytical framework in Savage
would not change the result in this case.
¶26 The administrative judge found, and we agree, that the appellant did not
show by preponderant evidence that race was a motivating factor in the
suspension action using direct evidence. ID at 15-16; Savage, 122 M.S.P.R. 612,
¶ 42. Here, although the appellant alleged that various coworkers and
contractors, including J.L., made racial comments to him during the course of his
employment with the agency, HT at 41-42 (testimony of the appellant); IAF,
Tab 12 at 4-5, 8-9, Tab 15 at 5, we agree with the administrative judge that the
appellant failed to prove that any agency managers or officials involved in the
suspension action at issue made remarks reflecting a discriminatory attitude. ID
at 16.
9
However, in an affirmative defenses order issued prior to the initial decision, the
administrative judge provided the appellant with notice of the burdens and elements of
proving an affirmative defense of discrimination under Savage. IAF, Tab 8 at 2‑4. The
appellant responded to this order. IAF, Tab 12 at 4.
14
¶27 We further find that, although the appellant asserted that he reported “years
of racial discrimination by co-workers” to agency managers who refused to take
action, IAF, Tab 12 at 8, the administrative judge correctly determined that the
appellant did not demonstrate that he raised complaints of a hostile work
environment to any agency managers or officials prior to the EEO complaint
involving the suspension at issue in this appeal. 10 ID at 16.
¶28 In addition, we agree with the administrative judge that the appellant
did not prove by preponderant evidence that race was a motivating factor in the
suspension action through evidence of disparate treatment of similarly situated
comparators. ID at 14-15. For another employee to be deemed similarly situated
for purposes of an affirmative defense of discrimination based on disparate
treatment, all relevant aspects of the appellant’s employment situation must be
“nearly identical” to that of the comparator employee. Ly v. Department of the
10
On review, the appellant argues that, in an affidavit submitted as part of the agency’s
investigation into his EEO complaint, his second‑level supervisor, J.G., stated that:
(1) in August 2013, the appellant reported that his coworkers were racist toward him;
and (2) in September 2013, the appellant complained that his first‑line supervisor,
W.W., treated him differently than other employees. PFR File, Tab 1 at 7 n.1. J.G.’s
affidavit reflects that the alleged incident with the appellant’s coworkers in
August 2013 involved the appellant’s dissatisfaction with a work assignment, and the
alleged incident with W.W. involved a situation where W.W. criticized the appellant for
almost running him over with a forklift. IAF, Tab 5 at 137, 139. Even if these events
occurred, the appellant has not demonstrated that they were based on his race, or that
they would be sufficiently severe or pervasive to create a working environment that a
reasonable person would find hostile or abusive. See, e.g., Godesky v. Department of
Health & Human Services, 101 M.S.P.R. 280, ¶ 14 n.* (2006) (finding that an
appellant’s allegations did not establish hostile work environment discrimination
because he did not show that the complained-of conduct was sufficiently severe or
pervasive enough to create an objectively hostile or abusive work environment);
see also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 754 (1998) (finding that a
hostile work environment claim requires a showing of severe or pervasive conduct).
Finally, the appellant has not explained how these alleged incidents, which occurred
approximately a year before the altercation with J.L. and the incident report at issue,
would demonstrate that race was a motivating factor in the suspension action at issue.
See Savage, 122 M.S.P.R. 612, ¶ 51 (requiring an appellant to make a showing that a
prohibited consideration was a motivating factor in the contested personnel action).
15
Treasury, 118 M.S.P.R. 481, ¶ 10 (2012). Thus, to be similarly situated, a
comparator must have reported to the same supervisor, been subjected to the same
standards governing discipline, and engaged in conduct similar to the appellant’s
without differentiating or mitigating circumstances. Id.
¶29 On review, as he did below, the appellant argues that he was treated less
favorably than J.L., R.P., and M.W., all of whom are African‑American.
PFR File, Tab 1 at 7‑9; IAF, Tab 12 at 8‑9. Specifically, the appellant argues
that the agency never disciplined J.L. for striking him in the head with a hammer,
or R.P. and M.W. for filing false statements asserting that the appellant, rather
than J.L., initiated the physical altercation at issue. PFR File, Tab 1 at 7‑9;
IAF, Tab 12 at 8‑9; see IAF, Tab 5 at 65, 67. We agree with the administrative
judge that the appellant failed to show that he was similarly situated to J.L., R.P.,
and M.W. because these individuals were contractors, rather than Federal
employees, and therefore, the agency could not impose disciplinary action on
them. ID at 14; HT at 10 (testimony of the appellant), 83 (testimony of M.W.),
130 (testimony of the appellant’s first‑level supervisor, C.C.). Moreover, it is
undisputed that, after the August 18, 2014 altercation at issue, J.L. walked out of
the warehouse and was never seen by the agency again. 11 IAF, Tab 12 at 6,
Tab 13 at 6; HT at 35 (testimony of the appellant). For these reasons, we agree
with the administrative judge that the appellant failed to prove disparate treatment
of similarly situated African‑American employees. ID at 14-15.
¶30 Finally, we find that the appellant failed to present any evidence that the
agency’s stated reason for imposing the suspension was not worthy of credence,
but rather a pretext for discrimination. Savage, 122 M.S.P.R. 612, ¶ 42. For this
11
Moreover, prior to the issuance of the initial decision, the agency would have had no
reason to discipline R.P. or M.W. for filing false reports because, although the
administrative judge ultimately concluded that their testimony was less credible than
the appellant’s, the agency was under the impression that their reports were accurate.
IAF, Tab 5 at 39‑40.
16
reason and the reasons discussed above, we modify the initial decision to
incorporate the standards in Savage and supplement the administrative judge’s
analysis, still finding that the appellant failed to prove his affirmative defense of
discrimination based on race.
The penalty of a 30‑day suspension is reasonable for the appellant’s
sustained misconduct.
¶31 On review, the appellant contests the administrative judge’s finding that the
penalty of a 30‑day suspension was reasonable. PFR File, Tab 1 at 6. He argues
that there is no basis to conclude that “any penalty would be reasonable for a
[F]ederal employee who was violently assaulted with a hammer in the
workplace.” Id. We disagree.
¶32 Where, as here, the Board does not sustain all of the agency’s charges, it
will carefully consider whether the sustained charges merit the agency’s imposed
penalty. See Boo, 122 M.S.P.R. 100, ¶ 17. In such a case, the Board may
mitigate the penalty to the maximum reasonable penalty so long as the agency
has not indicated in either its final decision or in proceedings before the Board
that it desires that a lesser penalty be imposed on fewer charges. Lachance v.
Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). Here, the deciding official
testified at the hearing that he would have imposed the same penalty if the
appellant had been charged only with falsification or misrepresentation.
HT at 218‑19 (testimony of the deciding official). However, the agency did not
prove the charge of misrepresentation but rather, proved the separate charge that
the appellant concealed facts on official documents. Thus, because the deciding
official did not express whether he would have imposed the same or a lesser
penalty on the sustained charge, the Board must apply the relevant Douglas
17
factors to determine the maximum reasonable penalty for the appellant’s
sustained misconduct. 12 See Boo, 122 M.S.P.R. 100, ¶ 17.
¶33 In evaluating whether a penalty is reasonable, the Board will consider, first
and foremost, the nature and seriousness of the misconduct. Neuman v. U.S.
Postal Service, 108 M.S.P.R. 200, ¶ 23 (2008). The Board has held that lack of
candor is a serious offense that strikes at the very heart of the employer-employee
relationship. Jackson v. Department of the Army, 99 M.S.P.R. 604, ¶ 6 (2005)
(citing Ludlum, 87 M.S.P.R. 56, ¶¶ 28‑29)). In addition, we find that the
deciding official properly considered the intentional nature of the appellant’s
misconduct as an aggravating factor. IAF, Tab 16 at 7; HT at 184‑85 (testimony
of the deciding official); see Boo, 122 M.S.P.R. 100, ¶ 14 (finding that the
intentional nature of an employee’s misconduct may be an aggravating factor in a
lack of candor charge); Douglas, 5 M.S.P.R. at 305 (finding that, in evaluating
the reasonableness of the penalty, the Board may consider whether the offense
was intentional). We also find that the deciding official properly considered the
appellant’s prior discipline, consisting of a 14‑day suspension in February 2014
for unprofessional conduct in the workplace, as an aggravating factor. IAF, Tab 5
at 87‑89, Tab 16 at 7; HT at 186‑87 (testimony of the deciding official);
see Douglas, 5 M.S.P.R. at 305 (finding that an employee’s prior discipline is a
factor to consider in determining the penalty for misconduct).
¶34 We have considered the mitigating factors discussed by the deciding
official, including the appellant’s 4 years of Federal service, his superior
performance rating, his potential for rehabilitation, and the job tensions that he
experienced with J.L., and find that they do not outweigh the aggravating factors
at issue here. IAF, Tab 16 at 7‑8; HT at 176, 188, 191‑92 (testimony of the
12
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305–06 (1981), the Board
articulated a nonexhaustive list of 12 factors, both aggravating and mitigating, that are
relevant to the penalty determination in adverse action cases.
18
deciding official). Moreover, the appellant’s arguments on review that he was
violently assaulted with a hammer and that the agency should have been aware
that J.L. had the potential for violence do not form a basis for mitigating the
penalty. PFR File, Tab 1 at 6. Indeed, if anything, these assertions cast further
doubt on the appellant’s judgment in concealing J.L.’s actions from the agency.
¶35 Accordingly, based on our review of the relevant Douglas factors, and
of other cases involving charges of lack of candor, we conclude that a
30-day suspension is within the bounds of reasonableness for the
appellant’s sustained misconduct. See Ludlum, 87 M.S.P.R. 56, ¶¶ 26‑33
(mitigating a penalty of removal for a lack of candor charge to a 120‑day
suspension); Jones v. Department of Justice, 13 M.S.P.R. 425, 426‑27 (1982)
(sustaining a penalty of removal for an appellant’s concealment of facts during a
pre‑employment interview).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request 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 your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
19
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. 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.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.