UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEONARD ENGLISH, JR., DOCKET NUMBER
Appellant, DE-0752-16-0306-I-1
v.
SMALL BUSINESS DATE: February 3, 2023
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Leonard English, Jr., Aurora, Colorado, pro se.
Ashley E. Obando, Esquire, and Beverley E. Hazlewood, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action suspending him for 30 days. Generally, we grant
petitions such as this one only in the following circumstanc es: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 rulin gs 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 a vailable
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 by this Final Order to address the administrative judge’s
analysis of the appellant’s discrimination claims, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency suspended the appellant for 30 days from his Surety Bond
Guarantee Specialist position based on charges of (1) Failure to Follow the
Instruction of a Duly Recognized Authority (Supervisor) (two specifications),
(2) Continuing Disrespectful and Disruptive Conduct (one specification),
(3) Absence Without Leave (one specification), and (4) Unprofessional Conduct
(five specifications). Initial Appeal File (IAF), Tab 7 at 4-7, 22-27, Tab 14
at 19-20. Charges 1 and 3 arose from the appellant’s failure to report for duty
after his supervisor terminated his telework agreement based upon her
determination that his performance had fallen below expectations. IAF, Tab 7
at 4. Charge 2 related to an email the appellant sent to agency management on
the same morning he refused to report to duty, in which he stated that he felt
unsafe in the office because his supervisor was volatile, hostile, and harassing
him. Id. at 6. The agency asserted that this email constituted an attempt to delay
and circumvent his supervisor’s instruction to report for duty and required the
3
agency to expend resources to investigate his safety when he had no credible
claim of potential workplace violence. Id. at 7-8. Charge 4 set forth five
instances in which the appellant made unprofessional statements to his supervisor
and to agency customers. Id. at 6-7, 9.
¶3 On appeal, the appellant disputed the agency’s charges, alleged that the
action was based on reprisal for whistleblowing, and asserted that the action was
based on discrimination (race, color, sex, age, and rep risal for filing equal
employment opportunity (EEO) complaints), harmful error, and reprisal for filing
Board appeals. IAF, Tab 1 at 4-5, Tab 6 at 5-23, Tab 18 at 5-15, 21-32, Tab 20
at 2-6, Tab 22 at 2-4. After the appellant withdrew his request for a hearing, the
administrative judge affirmed the agency’s action. IAF, Tabs 45-46, Tab 49,
Initial Decision (ID) at 1, 40. The administrative judge found that the agency
proved one specification of charge 1, the sole specification underlying charge 2,
the sole specification underlying charge 3, which he found merged with charge 1,
and all five specifications underlying charge 4. ID at 3-16. He further found that
there was a nexus between the sustained charges and the efficiency of the service.
Id. Finally, the administrative judge found that the appellant did not prove any of
his 30 affirmative defenses and that the 30-day suspension was a reasonable
penalty. ID at 16-40. Regarding his whistleblowing reprisal claim, the
administrative judge held that only two of the appellant’s disclosures were
protected and a contributing factor in the suspension. ID at 27-34. Nevertheless,
the administrative judge also found that the agency proved by clear and
convincing evidence that it would have suspended the appellant in the absence of
those disclosures. ID at 34-37.
¶4 The appellant has filed a timely petition for review of the initial decision .
Petition for Review (PFR) File, Tab 1. The agency has filed a response to the
petition for review, and the appellant has filed a reply to the agency’s response.
PFR File, Tabs 3-4. After the close of the record on review, PFR File, Tab 2, the
appellant filed a motion to amend the bases for his discrimination claims, PFR
4
File, Tab 5. In this regard, the appellant seeks to withdraw his claims of
discrimination based on color, sex, and age. Id. at 4. The appellant has not,
however, requested and obtained leave from the Clerk of the Board to file this
motion, see 5 C.F.R. § 1201.114(a)(5), nor has he shown that his motion is based
on evidence and argument that was not readily available before the record closed
on review, see 5 C.F.R. § 1201.114(k). Therefore, we deny the appellant’s
motion. In any event, the administrative judge already considered these claims,
and we find that permitting withdrawal of them at this stage of the proceeding
would be inappropriate. See Whitehurst v. Tennessee Valley Authority,
43 M.S.P.R. 486, 493-94 (1990); Moton v. U.S. Postal Service, 25 M.S.P.R. 639,
640 (1985). To the extent that he wishes to pursue these claims in a different
forum, the appellant may request the Equal Employment Opportunity Commission
to review the Board’s final decision on those claims or file a civil action in an
appropriate U.S. district court. See 5 C.F.R. § 1201.157.
¶5 The appellant also has filed, after the record closed on review, a motion for
leave to file an additional pleading. PFR File, Tab 10. He asserts that he has new
and relevant information that relates to his whistleblower allegations and shows
that a management official made false statements. Id. at 4-5.
¶6 Pleadings allowed on review include a petition for review, a cross petition
for review, a response to a petition for review, a response to a cross petition for
review, and a reply to a response to a petition for review. 5 C.F.R. § 1201.114(a).
No other pleading will be accepted unless the party files a motion with and
obtains leave from the Clerk of the Board. 5 C.F.R. § 1201.114(a)(5). Such a
motion must describe the nature of and need for the pleading. Id. Here, the
appellant has not sufficiently explained the nature of the information in question
and how this alleged new evidence would change the outcome of his appeal.
Therefore, we deny the appellant’s motion for leave to file an additional pleading.
5
The appellant has not shown that the administrative judge abused his discretion in
his rulings on witnesses.
¶7 The appellant contends that the administrative judge improperly denied his
request for two witnesses, “even though part of my defense involves them,” and
improperly denied his request for a third witness who allegedly was involved in
the decision-making process for the 30-day suspension. PFR File, Tab 1 at 6-7.
¶8 An administrative judge has wide discretion under 5 C.F.R.
§ 1201.41(b)(8), (10) to exclude witnesses when it has not been shown that their
testimony would be relevant, material, and nonrepetitious. Fox v. Department of
the Army, 120 M.S.P.R. 529, ¶ 42 (2014). The administrative judge found that
the appellant did not show that the witnesses in question would provide relevant
testimony because they were essentially individuals to whom the appellant had
complained about the proposing and deciding officials and who had allegedly
failed to take action against those officials. IAF, Tab 44 at 2-3. We find that the
appellant has not shown an abuse of discretion by the administrative judge.
The appellant has shown no error in the administrative judge’s fact ual findings.
¶9 The appellant asserts that the administrative judge did not conduct an
analysis of the witnesses’ credibility under Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987), improperly found his allegations to be “incredible,”
and made no reference to some of the evidence he submit ted. PFR File, Tab 1
at 5-8. The appellant does not, however, identify on review the particular
disputes of material fact for which he believes the administrative judge failed to
resolve issues of credibility. Moreover, the administrative judge provided a
persuasive explanation as to why he found not credible the appellant’s assertions
that he feared for his safety after his supervisor ordered him to report to work and
that his supervisor provoked him into making sarcastic and unprofessional
comments. The administrative judge found that the appellant’s fear for his safety
was not reasonable because he made the claim when both he and his supervisor
were not in the office, and he subsequently provided the agency with only
6
conclusory assertions as to why he believed he was in a hostile and retaliatory
environment. ID at 8-9. The administrative judge further found that the
appellant’s supervisor did not provoke his sarcastic and unprofessional comments,
as alleged by the appellant, because the appellant, among other things, made other
incredible arguments about his supervisor’s behavior . ID at 11-12. These
findings incorporate some of the Hillen factors, including the appellant’s
opportunity, as to place, time, proximity, and similar factors, to observe the event
or act at issue, the appellant’s character, the contradiction by or consistency with
other evidence in the case, and the inherent improbability of the appellant’s
version of events. See Hillen, 35 M.S.P.R. at 458-61; see also Hawkins v.
Smithsonian Institution, 73 M.S.P.R. 397, 403-04 (1997) (finding that credibility
determinations made concerning one matter in a case may be considered in
determining credibility in another matter). In any event, an administrative
judge’s failure to mention all of the evidence of record or to address every Hillen
factors does not mean that he did not consider them in reaching his decision.
Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 14 (2015), aff’d,
652 F. App’x 971 (Fed. Cir. 2016). Thus, the appellant has shown no error in the
administrative judge’s factual findings.
The appellant has not proven his discrimination claims.
¶10 The Age Discrimination in Employment Act states that “personnel
actions . . . shall be made free from any discrimination based on age.” 29 U.S.C.
§ 633a(a). Similarly, Title VII requires that such actions “shall be made free
from any discrimination based on race, color, religion , sex, or national origin.”
42 U.S.C. § 2000e-16(a). Thus, an appellant may prove a claim of discrimination
by showing that such discrimination “play[ed] any part” in the way a decision
was made. Babb v. Wilkie, 140 S. Ct. 1168, 1173-74 (2020); Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶ 21. A finding that prohibited
discrimination played “any part” in the contested action is the same as a finding
of “motivating factor.” Pridgen, 2022 MSPB 31, ¶ 21. Although an appellant
7
who proves motivating factor and nothing more may be entitled to injunctive or
other forward-looking relief, to obtain the full measure of relief available under
the statute, including status quo ante relief, compensatory damages, or other
forms of relief related to the end result of an employment decision, the appellant
must show that discrimination was a “but-for” cause of the employment outcome.
Id., ¶ 22. One may prove discrimination under these different standards of proof
by various methods, including comparator evidence. Id., ¶¶ 23-24.
¶11 The appellant contends that he established a prima facie case of
discrimination based on race, color, age, and sex because he submitted
comparator information and the agency treated him in a disparate manner as the
only member of his class that was disciplined. PFR File, Tab 1 at 8. He contends
that the administrative judge incorrectly found that he did not provide comparator
information and that such information can be found in his Exhibit HHH. Id.; IAF,
Tab 41 at 76-77. As set forth below, however, even considering this exhibit, we
find that the appellant has shown no error in the administrative judge’s
determination that the appellant did not prove his discrimination claims.
¶12 The primary basis for the appellant’s discrimination claims is his assertion
of disparate treatment. PFR File, Tab 1 at 8; see Savage v. Department of the
Army, 122 M.S.P.R. 612, ¶ 42 (noting that comparator evidence consists of
evidence that employees similarly situated to the appellant other than in the
characteristic on which the agency is forbidden to base a difference in treatment
received better treatment), overruled in part by Pridgen, 2022 MSPB 31,
¶¶ 23-25. Although the appellant has identified other individuals in his office
who were not in his protected classes, IAF, Tab 41 at 2, 76-77, which he has
described as his hand-numbered pages 18 and 19 of Exhibit HHH, he has not
alleged or shown that these individuals were similarly situated to him, i.e., that
they, among other things, engaged in misconduct similar to the misconduct
underlying the 30-day suspension in this case, see Hooper v. Department of the
Interior, 120 M.S.P.R. 658, ¶ 6 (2014) (finding employees similarly situated for
8
purposes of an affirmative defense of discrimination based on disparate treatment
when all relevant aspects of the appellant’s employment situation are “nearly
identical” to those of the comparator employee, including having engaged in
misconduct similar to the comparator employee without differentiating or
mitigating circumstances). While the appellant alleged that a coworker failed to
follow the same procedures for which he received a reprimand in 2015, made
three unsubstantiated complaints against the appellant, engaged in a “loud,
profane laced tirade in the office,” and was suspected of time and attendance
abuse, IAF, Tab 18 at 16-17, there is no indication that this individual engaged in
similar misconduct to that proven in this case or had a disciplinary record similar
to the appellant’s disciplinary record. Having considered this and all of the other
evidence on this issue, we find that the appellant has not shown by preponderant
evidence that his 30-day suspension was motivated by discriminatory animus.
¶13 The appellant also asserts that the administrative judge i mproperly accepted
the statements of the proposing and deciding officials that h is EEO activity
was not a factor in the agency’s action. PFR File, Tab 1 at 9. He further
contends that the deciding official was motivated to retaliate against him because
the deciding official provided an EEO affidavit only 15 days before he issued the
30-day suspension decision notice. Id. In addition, the appellant asserts that the
administrative judge did not consider several EEO affidavits. Id.
¶14 Claims of retaliation for opposing discrimination in violation of Title VII
are analyzed under the same framework used for Title VII discrimination claims.
Pridgen, 2022 MSPB 31, ¶ 30. Thus, the appellant must establish by
preponderant evidence that his EEO activity was at least a motivating factor in his
suspension. Id., ¶ 31. The administrative judge found that, although the
proposing and deciding officials were aware of the appellant’s May 2014 and
July 2015 EEO complaints, they submitted a sworn affidavit and declaration made
under penalty of perjury indicating that the complaints had no bearing on their
decisions. ID at 19; IAF, Tab 47 at 21, 27-28, 46, 51-52. Sworn statements, such
9
as affidavits and declarations, which are not rebutted are competent evidence of
the matters asserted therein. Aldridge v. Department of Agriculture,
110 M.S.P.R. 21, ¶ 9 (2008). Moreover, the administrative judge held that the
appellant did not prove this claim because the only evidence in support of his
claim was the acting officials’ knowledge of the complaints, the reasons and
evidence supporting the action were strong, and any inference of reprisal was
insubstantial. ID at 19. As set forth above, the administrative judge’s failure to
mention all of the evidence of record does not mean that he did not consider it.
Mithen, 122 M.S.P.R. 489, ¶ 14. Thus, based on all of the evidence of record, we
find that the appellant has not shown that his EEO complaints were a motivating
factor in his 30-day suspension. 2
The appellant has not shown that the action was based on harmful error.
¶15 The appellant contends that the agency committed harmful error when it
disciplined him for teleworking on November 3, 2015, even though the basis for
revoking his telework privileges did not become effective until November 5,
2015, and that his supervisor’s decision to revoke his telework privileges
otherwise violated the agency’s standard operating procedures. PFR File, Tab 1
at 9-10. An agency’s decision may not be sustained if the employee shows
harmful error “in the application of the agency’s procedures in arriving at such
decision.” 5 U.S.C. § 7701(c)(2)(A); see 5 C.F.R. § 1201.56(c)(1). To prove
harmful error, the appellant must show that the agency committed an error in the
application of its procedures that is likely to have caused the agen cy to reach a
conclusion different from the one it would have reached in the absence or cure of
the error. 5 C.F.R. § 1201.4(r).
2
Because we affirm the administrative judge’s finding that the appellant failed to meet
his initial burden to prove that race, color, age, sex, or retaliation for EEO activity were
motivating factors in the agency’s decision, we need not resolve the issue of whether
the appellant proved that discrimination and/or retaliation was a “but-for” cause of the
agency’s decision. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 30-33.
10
¶16 The errors identified by the appellant relate to his supervisor’s decision to
revoke his telework privileges. Thus, such errors predated his failure to follow
his supervisor’s instruction and concern the circumstances under which the
charged misconduct occurred. The Board has held that such errors do not come
within the harmful error rule because they do not concern the procedures the
agency applied in arriving at its decision to suspend the appellant for the charged
misconduct. See Boatman v. Department of Justice, 66 M.S.P.R. 58, 63 (1994);
Livingston v. Department of the Air Force, 26 M.S.P.R. 273, 275 (1985). In any
event, even assuming that the agency committed a procedural error in revoking
the appellant’s telework privileges, the administrative judge correctly found that
the appellant did not have an unfettered right to disregard his supervisor’s
instructions; rather, he was required to obey the order, even if he believed it to be
improper, and protest its propriety later. ID at 20; see Howarth v. U.S. Postal
Service, 77 M.S.P.R. 1, 7 (1997). Thus, he has not shown that the agency likely
would have reached a different conclusion in the absence or cure of any error.
The appellant has otherwise shown no basis for disturbing the administrative
judge’s finding that he did not prove harmful error.
The appellant has not shown that the action was based on reprisal for filing
Board appeals.
¶17 The appellant contends that the prior individual right of action (IRA)
appeals he had filed with the Board, in which he alleged that the proposing and
deciding officials had retaliated against him for whistleblowing by issuing him
two letters of reprimand and not placing him in the office’s line of succession,
were contributing factors in his 30-day suspension and that the agency did not
prove that it would have suspended him in the absence of those appeals. PFR
File, Tab 1 at 14-15; ID at 25; IAF, Tab 18 at 50-53, 273-78. He asserts that,
instead of finding that the acting officials only had a “substantial” motive to
retaliate based on the Board appeals, the administrative judge should have found
that they had a strong motive to retaliate. Id.
11
¶18 Under 5 U.S.C. § 2302(b)(9)(A)(i), an employee who has the authority to
take any personnel action shall not, with respect to such authority, take any
personnel action because of the exercise of any appeal with regard to remedying a
violation of 5 U.S.C. § 2302(b)(8). The administrative judge found that the
proposing official was aware of one of the IRA appeals and that the deciding
official was aware of both IRA appeals, before they proposed and decided to
suspend the appellant. ID at 23. Given the relatively short period of time
between the dates on which the officials learned of the appeals and the appellant’s
suspension, the administrative judge found that the appellant proved that the
appeals were a contributing factor in his suspension. ID at 23-24. Nevertheless,
the administrative judge also found, based on an analysis of the factors set forth
in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999),
and the principles set forth in Whitmore v. Department of Labor, 680 F.3d 1353,
1368 (Fed. Cir. 2012), that the agency proved by clear and convincing evidence
that it would have suspended the appellant even absent his Board appeals . 3 ID
at 24-25. In this regard, the administrative judge found that the agency’s
evidence in support of its action was “quite strong,” and any motive to retaliate
was only “substantial,” and not “strong,” because he had found in the appellant’s
IRA appeals that the proposing and deciding officials did not retaliate against the
appellant. Id. In the absence of any evidence regarding whether the agency took
similar actions against similarly situated individuals who had not filed such Board
appeals, a factor that the administrative judge found to be neutral in this case, the
administrative judge concluded that he was “left with the firm belief that the
3
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. Howeve r, pursuant to
the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
12
agency would have taken the same actions even absent the appellant’s Board
appeals.” ID at 25. The appellant has not provided a persuasive basis for finding
that any motive to retaliate based on his Board appeals was “ strong” in this case
rather than “substantial,” or for otherwise disturbing the administrative judge’s
findings on this issue, which considered the evidenc e in the record in the
aggregate, including evidence that fairly detracted from the conclusion that the
agency met its burden by clear and convincing evidence . ID at 24; see Whitmore,
680 F.3d at 1368.
The appellant has not shown that the majority of his disclosures were protected
and a contributing factor in his 30-day suspension.
¶19 The appellant asserts that his disclosures were a contributing factor in his
30-day suspension because the proposing and deciding official s knew or should
have known about those disclosures given that the Workforce Relations Division,
which wrote the proposal and decision letters for those officials, “had to tell
[them] about my protected disclosures.” PFR File, Tab 1 at 12-16, 19-20. The
administrative judge found that, for most of the appellant’s alleged disclosures,
he merely asserted that he suspected that the proposing and deciding officials
knew of the disclosures, yet cited no evidence for his suspicions, and the officials
in question denied, under penalty of perjury, knowing of the alleged disclosures.
ID at 27-32. The appellant has shown no error in these findings.
¶20 Moreover, under 5 U.S.C. § 1221(e)(1), an employee may show that a
disclosure or protected activity was a contributing factor in a personnel action
through circumstantial evidence, such as evidence that the official taking the
personnel action “knew of the disclosure or protected activity” and the personnel
action occurred within a period of time such that a reasonable person could
conclude that the disclosure or protected activity was a contributing factor in the
personnel action. The appellant has provided no support for his contention that
the contributing factor test can be met based solely on a claim that an acting
official should have known about a disclosure. Cf. Bradley v. Department of
13
Homeland Security, 123 M.S.P.R. 547, ¶ 15 (2016) (finding that an appellant can
show that a protected disclosure was a contributing factor in a personnel action by
proving that the official taking the action had constructive knowledge of the
protected disclosures, i.e., that an individual with actual knowledge of the
disclosure influenced the official accused of taking the retaliatory action).
¶21 In addition, the appellant contends that some of his disclosures evidenced
an abuse of authority. PFR File, Tab 1 at 11. He does not, however, identify
which of his many alleged disclosures he believes evidenced such an abuse of
authority. Id. Even assuming that some of the appellant’s disclosures evidenced
such abuse, the administrative judge correctly found that he did not prove that
any such disclosures were a contributing factor in his 30 -day suspension and that
the agency submitted clear and convincing evidence that it would have taken the
same action in the absence of his disclosures. ID at 27-37.
The agency proved by clear and convincing evidence that it would have taken the
same action in the absence of the appellant’s disclosures.
¶22 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the personnel action in the absence of the
protected activity, the Board will consider all of the relevant factors, including
the following factors (Carr 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 the agency officials who were involved in the decision; and (3) any
evidence that the agency takes similar actions against employees who did not
engage in such protected activity, but who are otherwise similarly situated.
Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see Carr, 185 F.3d
at 1323. The appellant contends, as to Carr factor two, that the administrative
judge did not consider all of his protected disclosures that would have caused
management officials to be strongly motivated to retaliate against him. PFR File,
Tab 1 at 5. The administrative judge found, however, that all but two of the
appellant’s disclosures were either not protected or were not a contributing factor
14
in his 30-day suspension. ID at 27-34. Thus, there was no basis for the
administrative judge to address whether there was a motive to retaliate based on
any of these other disclosures.
¶23 The appellant also asserts, regarding Carr factor three, that the
administrative judge ignored other surety bond specialists and a supervisor, who
he alleges engaged in more severe misconduct but who were not disciplined. PFR
File, Tab 1 at 5-6, 21. Carr factor three addresses any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated to the appellant. Carr, 185 F.3d at 1323. For an
employee to be considered similarly situated to an individual who is disciplined,
it must be shown that the conduct and the circumstances surrounding the conduct
of the comparison employee are similar to those of the disciplined individual. Id.
at 1326. The record does not establish that the individuals identified by the
appellant engaged in misconduct similar to that involved in this case. For
example, as set forth above, the appellant alleged that a coworker who was not a
whistleblower and who was not disciplined failed to follow the same procedures
for which he received a reprimand in 2015, made three unsubstantiated
complaints against the appellant, engaged in a “loud, profane laced tirade in the
office,” and was suspected of time and attendance abuse. IAF, Tab 18 at 16-17.
Similarly, the appellant alleged that his supervisor was not a good leader, did not
bring people together, did not conduct regular staff meetings, had a “very
questionable” time and attendance record, made numerous errors, sent harassing
emails, lacked candor, gave her friends preferential treatment, failed to maintain
employee privacy, and was generally incompetent. IAF, Tab 48 at 53-54. These
allegations are not similar to the misconduct the appellant engaged in that the
agency has proven in this case. Moreover, the deciding official averred that
“[t]here were no comparators who had been charged with similar behavior as
identified in the [proposal] letter.” IAF, Tab 47 at 52.
15
¶24 Because it is the agency’s burden of proof, when the agency fails to
introduce relevant comparator evidence, the third Carr factor cannot weigh in
favor of the agency. Soto, 2022 MSPB 6, ¶ 18; see Rickel v. Department of the
Navy, 31 F.4th 1358, 1365-66 (Fed. Cir. 2022) (“The lack of evidence on the third
Carr factor appears neutral[.]”) (internal citations omitted). If the first two Carr
factors are only supported by weak evidence, the failure to present evidence on
the third Carr factor may prevent the agency from carrying its overall burden.
Smith v. Department of the Army, 2022 MSPB 4, ¶ 30; see Miller v. Department
of Justice, 842 F.3d 1252, 1262-63 (Fed. Cir. 2016) (where an agency presented
little or weak evidence for the first two Carr factors, the lack of Carr factor three
evidence “if anything[] tends to cut slightly against the government”). A lthough
the appellant contends that an absence of evidence regarding Carr factor three
“may well cause the agency to fail to prove its case overall,” PFR File, Tab 1
at 20, we agree with the administrative judge that any absence of such evidence in
this case does not warrant a finding that the agency did not meet its burden, ID
at 36; see Whitmore, 680 F.3d at 1374 (holding that the absence of any evidence
relating to Carr factor three can effectively remove that factor from the analysis).
As found by the administrative judge, the agency’s evidence in support of its
action was quite strong, and any motive to retaliate was slight at best for one of
the protected disclosures 4 and moderate for the other disclosure. ID at 35-36.
4
The administrative judge found that the acting officials’ motive to retaliate against the
appellant for his April 18, 2014 disclosure that a coworker abused time and attendance
requirements was “only slight” because there was no evidence that anyone was
embarrassed, implicated, or more than slightly inconvenienced by the disclosure.
ID at 35. We have found that those responsible for the agency’s performance overall
may well be motivated to retaliate even if they are not directly implicated by the
disclosures as the criticism reflects on them in their capacities as managers and
employees. Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 65; Smith,
2022 MSPB 4, ¶¶ 28-29. Nonetheless, to the extent the acting officials may have
harbored retaliatory animus against the appellant because of possible concerns that the
conduct that the appellant disclosed reflected badly on the agency, we find that any
motive to retaliate was slight.
16
Thus, we find that the appellant has shown no error in the administrative judge’s
determination that the agency proved by clear and convincing evidence that it
would have taken the same action in the absence of his disclosures.
¶25 Accordingly, we deny the appellant’s petition for review. 5
NOTICE OF APPEAL RIGHTS 6
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 an d
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.
5
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of t he appeal.
6
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
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
18
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (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 fil e
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:
19
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. 7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7
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.
20
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 websit e at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.