UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY GAGLIARDO, DOCKET NUMBER
Appellant, DC-0752-15-0117-I-1
v.
DEPARTMENT OF DATE: January 13, 2023
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael W. Pearson, Esquire, Phoenix, Arizona, for the appellant.
Elisabeth Boyen Fry, 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 his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The agency’s Federal Aviation Administration (FAA) removed the appellant
from his Supervisory Aviation Systems Specialist position based on a charge of
Inappropriate Conduct supported by 12 specifications. Initial Appeal File (IAF),
Tab 4 at 17-23, Tab 5 at 128-33. The agency asserted that the appellant:
(1) misused his position to help a private individual obtain employment on a
subcontract; (2) impermissibly provided advice to a contractor regarding rate
negotiations; (3) received “VIP” passes to a conference from a contractor that was
providing services to his group; (4) provided feedback to a contractor in its
drafting of a “Business Case” regarding what the contractor was supposed to be
aware of and who would be the focal point for conversations; (5) improperly
involved himself in the hiring process for several vacant positions for which a
contractor had applied; (6) made inappropriate comments of a sexual nature in the
workplace; (7) informed a coworker that her job would be “on the line” if she did
not get funding approved that was necessary for contract approval; (8) informed a
coworker that he would destroy her if she “sa[id] anything against [him]” ;
(9) informed a coworker on two occasions that he would “destroy him” if he
3
talked about the appellant behind his back or went around him; (10) made
inflammatory statements and spread rumors about the personal lives of
employees, specifically, that two coworkers were having an affair and cheating on
their spouses; (11) poured alcohol into his coffee cup and drank it while in the
office during duty hours; and (12) lowered his trousers and exposed his “behind”
to highway traffic from his office window while others were present. IAF, Tab 5
at 128-30.
¶3 After a hearing, the administrative judge issued an initial decision that
affirmed the agency’s action upon finding that the agency proved its charge based
on only four of the specifications, namely, specifications (2), (8), (9), and (10).
IAF, Tab 145, Initial Decision (ID) at 1-27, 43. The administrative judge also
found that the appellant did not prove harmful error, a due process violation, or
reprisal for whistleblowing. ID at 27-39. Finally, the administrative judge found
that the penalty of removal was reasonable and promoted the efficiency of the
service. ID at 39-42.
¶4 The appellant has filed a petition for review of the initial decision, the
agency has filed a response in opposition, and the appellant has filed a reply to
the agency’s response. Petition for Review (PFR) File, Tabs 4, 14-15. 2
ANALYSIS
The appellant has not shown that the administrative judge erred in finding that the
agency proved its charge by preponderant evidence.
¶5 The appellant asserts on review that the agency did not prove
specification (2) because the investigator of this misconduct indicated that none
2
The appellant requests that the Board grant oral argument in this case. PFR File,
Tab 4 at 5. In any case that is reopened or reviewed, the Board “may . . . [h]ear oral
arguments.” 5 C.F.R. § 1201.117(a)(2). We deny the appellant’s request because he
does not explain why he believes that such argument would assist the Board in deciding
his case, see Kravitz v. Department of the Navy, 104 M.S.P.R. 483, ¶ 4 n.3 (2007), nor
has he shown what evidence or argument he would present at oral argument or how
such oral argument would add to the proceedings, see Lee v. Department of Justice,
99 M.S.P.R. 256, ¶ 7 n.4 (2005).
4
of the specifications could be substantiated by preponderant evidence without a
more thorough investigation, including interviews of the appellant and others.
PFR File, Tab 4 at 28. He also contends that the agency did not prove that he
violated 5 C.F.R. § 2635.703(a), which, he asserts, is the regulation at issue in
this specification, because it did not show that the contractor used the information
and opinion that the appellant had provided to him. Id. at 28-29.
¶6 Contrary to the appellant’s assertion, the Board need not consider the
evidence an agency had before it when it proposed or effected an action because a
Board appeal is a de novo review of the agency’s evidence, and the Board will
decide whether that evidence supports the charge. See Barrett v. Department of
the Interior, 54 M.S.P.R. 356, 365 (1992); see also Jackson v. Veterans
Administration, 768 F.2d 1325, 1329 (Fed. Cir. 1985) (requiring a de novo
determination of the facts in a Board appeal). Thus, to have its action sustained,
the agency must present preponderant evidence before the Board. See 5 U.S.C.
§ 7701(c)(1)(B); 5 C.F.R. § 1201.56(b)(1)(ii). The appellant has not, therefore,
shown that the agency needed to show that the proposing and deciding officials
had preponderant evidence in support of the action when they decided to take
their respective actions. In any event, the thoroughness or lack of thoroughness
of an agency investigation of alleged misconduct is not a proper basis for not
sustaining an agency’s charge. Uske v. U.S. Postal Service, 60 M.S.P.R. 544, 550
(1994), aff’d, 56 F.3d 1375 (Fed. Cir. 1995).
¶7 Moreover, we disagree with the appellant’s contention that the agency did
not prove a violation of 5 C.F.R. § 2635.703(a). Under section 2635.703(a),
which addresses the use of nonpublic information, an employee “shall not engage
in a financial transaction using nonpublic information, nor allow the improper use
of nonpublic information to further his own private interest or that of another,
whether through advice or recommendation, or by knowing unauthorized
disclosure.” Despite the appellant’s contention that the individual to whom
nonpublic information is provided must use the information to prove a violation ,
5
the examples set forth in the regulation show otherwise. Example 1 describes a
Navy employee who advises friends or relatives to purchase stock in a small
corporation that will be awarded a Navy contract. 5 C.F.R. § 2635.703.
Similarly, Example 2 provides that “[a] General Services Administration
employee involved in evaluating proposals for a construction contract cannot
disclose the terms of a competing proposal to a friend employed by a company
bidding on the work.” Id. These examples do not describe any use of the
nonpublic information by the recipient of the information. In addition, our
reading of the regulation is consistent with the history of the final rule
implementing the regulation, which notes that the purpose of the broad principle
underlying the regulation “is as much to protect nonpublic information as it is [to]
ensure that the employee and others do not profit from the improper disclosure of
such information.” Standards of Ethical Conduct for Employees of the Executive
Branch, 57 Fed. Reg. 35006, 35031 (Aug. 7, 1992). The Board’s decision in
Suarez v. Department of Housing & Urban Development, 96 M.S.P.R. 213 (2004),
aff’d, 125 F. App’x 1010 (Fed. Cir. 2005), which the appellant cites on review, is
distinguishable from this case. In Suarez, it appears that the agency alleged in its
charge that the recipient of the nonpublic information used that information to
purchase real estate. 96 M.S.P.R. 213, ¶¶ 2, 9, 13, 17-19, 26. Here, by contrast,
the agency did not assert in the narrative underlying specification (2) that the
individual who received the nonpublic information from the appellant ultimately
used that information to further his own interests. IAF, Tab 5 at 128-29.
¶8 In any event, even if the appellant has correctly interpreted
section 2635.703(a), he has not established that the agency needed to prove a
violation of that section to sustain its charge. Unlike the agency in Suarez,
96 M.S.P.R. 213, ¶ 20, which expressly charged Ms. Suarez with violating
section 2635.703(a), the agency in this case charged the appellant with
“Inappropriate conduct,” followed by a narrative of the facts underlying
specification (2). IAF, Tab 5 at 128. An agency is not required to affix a label to
6
a charge but may simply describe actions that constitute misbehavior in narrative
form in its charge letter; if the agency chooses to label an action of alleged
misconduct, then it must prove the elements that make up the legal definition of
the charge, if any. Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 202 (1997).
Here, the agency’s charge and specification did not allege a violation of
section 2635.703(a); thus, the agency did not have to prove a violation of the
elements of section 2635.703(a). Cf. Otero, 73 M.S.P.R. at 203-04 (explaining
that, because the agency charged the appellant with “improper conduct,” it was
not required to prove a threat under Metz v. Department of the Treasury, 780 F.2d
1001, 1004 (Fed. Cir. 1986), even though the narrative description of the
misconduct accompanying the charge described the appellant’s behavior as
threatening). Although the agency mentioned section 2635.703(a) later in the
proposal notice, it referenced that regulation in noting that the appellant’s
interactions with contract personnel “created the appearance of violating ethical
standards.” IAF, Tab 5 at 131.
¶9 The appellant further contends that the administrative judge improperly
sustained specification (2) based on “a partial writing” because the agency did not
produce in discovery parts of an email thread, which the appellant contends
included communications that would exonerate him. PFR File, Tab 4 at 32-34.
Although the appellant contends that the missing documents include a longer
response he had written to “discrete questions” raised by a contractor, id. at 33,
he does not describe the nature of his response or explain how it would tend to
undermine the portions of the emails showing that he impermissibly provided
advice to a contractor regarding rate negotiations . The administrative judge
denied as untimely filed the appellant’s motion to compel this information. IAF,
Tab 47. The appellant has not alleged or shown that the administrative judge
abused his discretion in this regard. See Figueroa v. Department of Homeland
Security, 119 M.S.P.R. 422, ¶ 9 (2013) (holding that the Board will not reverse an
administrative judge’s rulings on discovery matters absent an abuse of
7
discretion), overruled on other grounds by Singh v. U.S. Postal Ser vice, 2022
MSPB 15, ¶¶ 9, 11. Thus, he has shown no basis for disturbing the administrative
judge’s finding that the agency proved specification (2) by preponderant
evidence.
¶10 The appellant also contends that the agency did not prove specification (8)
because, among other things, the witness to this misconduct did not report the
alleged threat to destroy her to anyone in a timely manner. PFR File, Tab 4 at 30.
A petition for review must be supported by specific references to the record.
5 C.F.R. § 1201.114(b). Here, the appellant has not identified any evidence in the
record supporting his contention that the witness did not report the alleged threat
in a timely manner. In any event, the administrative judge found that this witness
testified in a “sincere straight-forward manner.” ID at 19. 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 appellant has not established that
there are sufficiently sound reasons for overturning the administrative judge’s
credibility determinations regarding this witness. Under these circumstances, the
appellant has not demonstrated that the administrative judge erred when he found
that the agency proved specification (8).
¶11 Next, the appellant asserts that the agency did not prove specification (9)
because the administrative judge found that the witness who alleged that the
appellant engaged in this misconduct was not credible regarding
specification (11) and that this witness was inconsistent as to when the
misconduct underlying specification (9) took place. PFR File, Tab 4 at 29-30.
As set forth above, specification (9) alleged that the appellant informed a
coworker that he would “destroy him” if he talked about the appellant behind his
back or went around him. IAF, Tab 5 at 129. An administrative judge is not
8
required to discredit a witness’s testimony on all issues or charges once that
testimony is discredited on one or more issues or charges . Rackers v. Department
of Justice, 79 M.S.P.R. 262, 281 (1998), aff’d, 194 F.3d 1336 (Fed. Cir. 1999)
(Table). Thus, the appellant has shown no error in this regard, particularly given
that the administrative judge provided a persuasive explanation as to why he
found the witness credible as to specification (9) but less credible regarding
specification (11). ID at 20-21, 25. Moreover, even assuming that the witness
was not clear as to whether the appellant made the charged statement before or
after the witness left to serve on a detail at Joint Base Andrews, we find that this
does not undermine his credibility. The agency charged that these types of
statements were made in May 2012 and March 2013. IAF, Tab 5 at 129. Any
imprecision regarding when the statements were made does not detract from this
witness’s credibility because he told the investigator and testified at the hearing
that the appellant had made those types of threatening statements numerous times,
i.e., at least six to eight times since 2011. IAF, Tab 6 at 106-07; Hearing
Transcript (HT) (June 23, 2015) at 162-66. The witness also testified that he was
not certain he told the investigator that the appellant made the statement before he
left for the detail. HT (June 23, 2015) at 165-66. The investigator’s
memorandum of her interview with the witness was not signed by the witness or
certified by him as accurate. IAF, Tab 6 at 106-14. Under these circumstances,
the appellant has not shown that the administrative judge erred when he found
that the agency proved specification (9).
¶12 Finally, the appellant asserts that the administrative judge should not have
sustained specification (10) because the allegation that he spread a rumor that
certain employees were having an affair was “dated” and inherently improbable.
PFR File, Tab 4 at 31. We disagree. The appellant has not shown that the age of
the rumor precluded the agency from relying on it in its charge of misconduct nor
has he shown that it was inherently improbable that the appellant would spread
such a rumor. Moreover, he has not shown that any delay in bringing the action
9
was unreasonable and that he was materially prejudiced by t he delay. See
Kirkland v. Department of Homeland Security, 119 M.S.P.R. 74, ¶¶ 22-23 (2013)
(holding that the defense of staleness falls under the equitable doctrine of laches,
under which an appellant must prove both that the delay in bringing the action
was unreasonable and that she was materially prejudiced by the delay). Further,
the appellant has not shown that it is inherently improbable that the subject of the
rumor would bring the matter to the appellant’s attention and ask him to initiate
an investigation into the source of the rumor to “diffuse [his] rumor-spreading.”
ID at 22-24.
The appellant has not proven harmful error.
¶13 Harmful error is error by the agency in the application of its procedures that
is likely to have caused the agency 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).
The appellant asserts that the agency committed harmful error when it reopened a
closed complaint (the April 2013 “Ward” complaint) in violation of FAA
Accountability Board (AB) Order 1110.125a and used information it discovered
during the course of that reopened investigation to support its action. PFR File,
Tab 4 at 13-14, 16. In addition, he contends that the administrative judge
incorrectly found that the investigation that led to his removal was based on a
new AB complaint (the November 2013 “Carroll” complaint), which was entirely
unrelated to the Ward complaint. Id. at 14-15.
¶14 FAA AB Order 1110.125a sets forth procedures for reporting, investigating,
and processing allegations of harassment and other misconduct that creates a
hostile work environment. IAF, Tab 8 at 54. It provides that, based on a
preliminary assessment of the seriousness or sensitivity of the allegation, the
complexity of the case, and the likelihood of determin ing the relevant facts in a
short period of time, the Accountable Official, who is generally a high-level
management official representing the organization employing the individual
against whom an allegation is made, may either address the matter by conducting
10
an internal inquiry without requesting a formal investigation or refer the matter to
the Accountability Board Coordinator and request a formal security investigation .
Id. at 59-61, 66. If the Accountable Official determines that a formal
investigation is not necessary, he or she has 15 workdays from the date the
allegation was first reported in which to address the allegation, i.e., determine the
facts and decide what, if any, action is appropriate and, where such action is
appropriate, initiate that action. Id. at 66. If, within 15 workdays of the date the
allegation was first reported, or the date the incident otherwise became known to
management, it is determined that the facts of the case are sufficiently known to
determine the appropriate course of action (including a determination that no
further action is needed, which appears to have been the case regarding the Ward
complaint), the management official may initiate action after coordination with
the human resources point of contact (HR POC). Id. If the Accountable Official
and the HR POC agree on the proposed action, the Accountable Official may
initiate such action and report it to the Accountability Board, stating the
allegation and the facts relevant to determining the appropriateness of the action
taken, if any. IAF, Tab 8 at 67.
¶15 The appellant has not identified, and we have not found, any provision of
FAA AB Order 1110.125a that would prevent the agency from reopening a
complaint after an initial determination has been made during an in ternal inquiry
that no action should be taken. Id. at 54-70. Although the appellant contends
that an extension of time to complete a formal security investigation must be
requested from the Accountability Board Director and that an Accountable
Official cannot, therefore, begin such an investigation months after a complaint is
received, PFR File, Tab 4 at 14, the appellant has not shown that this case
involved an ongoing investigation in which an extension might have been needed
and requested, IAF, Tab 8 at 68. We therefore agree with the administrative
judge that, although the appellant identified at length the procedures applicable to
the AB-related investigations, “neither the timing of the investigation nor the
11
procedural responses by management were overtly erroneous.” ID at 32-33.
Thus, regardless of whether the Ward complaint or the Carroll complaint
prompted the investigation that led to the agency’s action, the appellant has
shown no error in the agency’s procedures.
¶16 The appellant also asserts that the agency committed harmful error when it
“made a determination” before the investigation was complete in violation of
FAA AB Order 1110.125a, which provides that no “determination” may be made
about an employee’s conduct until the conclusion of the appropriate inquiry or
investigation. PFR File, Tab 4 at 17. The appellant contends that the agency
made a “determination” when it removed him, even though the investigator of his
contract-related misconduct only submitted a memorandum of preliminary results ,
and the investigation had not, therefore, concluded. Id. at 17-18.
¶17 As set forth above, FAA AB Order 1110.125a provides procedures for
reporting, investigating, and processing allegations of harassment and other
misconduct that creates a hostile work environment. IAF, Tab 8 at 54. Altho ugh
the appellant contends that the procedures set forth in the above order also apply
to investigations that do not involve allegations of harassme nt or a hostile work
environment, including the investigation of the ethical and contractual allegations
at issue in this case, PFR File, Tab 4 at 17 n.11, we disagree. The appellant relies
upon FAA Order 1600.38F for this contention, but that document does not appear
to be included in the record of this case. Even if we were to take official notice
of the version of FAA Order 1600.38F that is publicly available online, see Lovoy
v. Department of Health & Human Services, 94 M.S.P.R. 571, ¶ 37 (2003) (taking
official notice of pay tables that were published online); 5 C.F.R. § 1201.64, there
is no indication in that order or its appendix that the FAA will apply the
procedures set forth in FAA AB Order 1110.125a to investigations that do not
involve allegations of harassment and a hostile work environment, see Order
1600.38F (Mar. 15, 2010), https://www.faa.gov/documentLibrary/
media/Order/1600.38F.pdf (last visited January 6, 2022).
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¶18 Even assuming that FAA AB Order 1110.125a did apply to the investigation
in question, its provisions do not support the appellant’s contentions. The
provisions regarding making a “determination” before an investigation is
completed address how a respondent, i.e., the individual against whom an
allegation is made, is to be notified of the allegations against him and merely
instructs supervisors not to make statements that imply judgment or culpability,
assess the merits of the allegations, or make a “determination” about the
respondent’s conduct until the conclusion of the appropriate inquiry. IAF, Tab 8
at 59, 65. There is no suggestion in FAA AB Order 1110.125a that the
“determination” in question relates to a decision to propose or take disciplinary
action. There also is no indication in the record, and the appellant does not
allege, that a supervisor failed to maintain such neutrality in notifying him of the
nature of the allegations against him. Thus, we find that he has shown no error in
this regard nor has he shown that the agency likely would have reached a
different result in the absence or cure of such error.
¶19 The appellant further alleges that the agency committed harmful error when
it violated the requirement in FAA AB Order 1110.125a that the Accountable
Official coordinate with the designated HR POC when choosing an investigator,
deciding whether to conduct an internal inquiry or a formal security investigation,
and engaging in other phases of the Accountability Board process. PFR File,
Tab 4 at 18-19. The appellant asserts that, although the Accountable Official
conferred with other human resources officials, he did not coordinate with the
HR POC. Id. at 18. The appellant contends that this error resulted in harm
because “having a second set of eyes” on the Accountable Official’s activities
likely would have prevented many of the errors he allegedly committed in
investigating and resolving the matter, including the alleged harmful errors set
forth above. Id. at 19. The appellant also contends that the agency committed
harmful error when it selected investigators who were not Special Agents with the
Office of Civil Aviation Security Operations. Id. at 20-21.
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¶20 We agree with the appellant that, under FAA AB Order 1110.125a, during
all phases of the Accountability Board process, including the reporting of an
allegation, interviewing a reporting party, and reviewing the facts of the case and
determining whether to take corrective or disciplinary action, coordination with
the HR POC is required. IAF, Tab 8 at 62. We also agree with the appellant that,
after the Accountable Official notifies the Accountability Board Coordinator that
an allegation warrants formal investigation, the Accountability Board Coordinator
will refer requests for investigation to the Accountability Board Investigations
Program Manager, “who will assign the allegation to the Office of Civil Aviation
Security Operations or appropriate regional or center Civil Aviation Security
Division.” Id. at 67. Here, even assuming that the agency failed to follow these
requirements, the appellant has not shown that any such error likely caused the
agency to reach a conclusion different from the one it wou ld have reached in the
absence or cure of the error. See Leftridge v. U.S. Postal Service, 56 M.S.P.R.
340, 344-45 (1993). The appellant does not, for example, identify on review any
testimony from the HR POC as to how that individual would have acted if
coordination had taken place or any testimony or other evidence showing that the
agency likely would have reached a different result if the investigation had been
assigned to a Special Agent. Thus, we agree with the administrative judge that
the appellant has not proven his harmful error allegation.
The appellant has not proven a due process violation .
¶21 The appellant asserts that the agency denied him a meaningful opportunity
to respond to the proposal notice and thereby violated his due process rights,
when it “fail[ed] to disclose materials in its possession that would allow
Petitioner to defend himself against the specifications.” PFR File, Tab 4 at 22.
In apparent support of this argument, the appellant contends that the
administrative judge improperly denied as untimely filed his motion to compel
the production of certain documents. Id. at 23-24.
14
¶22 The essential requirements of constitutional due process for a tenured public
employee are notice of the charges against him, an explanation of the evidence,
and an opportunity for him to present his account of events. Henderson v.
Department of Veterans Affairs, 123 M.S.P.R. 536, ¶ 11 (2016). Here, as
required by 5 C.F.R. § 752.404(b)(1), the agency indicated in its proposal notice
that it had attached the material it relied upon to support the proposed action.
IAF, Tab 5 at 132. The proposal notice listed 26 attachments that included,
among other things, an investigative report, an investigative summary, multiple
interviews with witnesses, along with relevant emails, and two AB case reports.
Id. at 132-33. The appellant filed a 17-page reply to the proposal notice that
addressed each of the agency’s 12 specifications in detail, along with 15 exhibits
comprising over 100 additional pages. IAF, Tab 5 at 4-127. The appellant does
not allege on review, and it does not appear from his attorney’s response to the
proposal notice, that he did not understand the agency’s charge. As found by the
administrative judge below, the appellant has not identified any material actually
considered by the deciding official that he did not receive, other than generally
alleging that the agency “fail[ed] to disclose materials in its possession.” ID
at 33. Thus, we find that he received sufficient notice to enable him to make a
meaningful reply. See Alvarado v. Department of the Air Force, 97 M.S.P.R.
389, ¶¶ 8-13 (2004). Moreover, the appellant has shown no error in the denial of
his motions to compel as untimely filed. E.g., IAF, Tab 21 at 4, 32, 39, 47, 87,
108; see also 5 C.F.R. § 1201.73(d)(3).
The appellant has not shown that the administrative judge erred when he found
that the appellant did not prove that his disclosures were a contributing factor in
the removal action.
¶23 The appellant asserts that, contrary to the findings of the administrative
judge, the deciding official knew of his disclosures before he effected the removal
action. PFR File, Tab 4 at 25. In this regard, the appellant contends that an
investigator uncovered allegations that the deciding official “steered” $3 million
15
to a contractor to do a special study before the requirements of the study had been
identified, and the appellant notified the deciding official in his response to the
proposal notice that he was being retaliated against “due to his knowledge of
widespread fraud, waste, and abuse within the FAA” and that he had “notified his
supervisors and congressional sources of these issues.” Id. The appellant further
contends that witnesses at the hearing testified that the appellant reported his
“concern” to his superiors, including the deciding official. Id.
¶24 The administrative judge found that the appellant did not claim that he
notified the deciding official of illegal conduct, gross mismanagement, a gross
waste of funds, or any other whistleblowing communication. ID at 38. The
administrative judge also found that the deciding official testified in a pat ient,
calm, and sincere manner and “presented the affect of one seeking to achieve the
right result for the right reason without motive to retaliate.” ID at 38. Thus, the
administrative judge credited the deciding official’s testimony that he did not
know that the appellant made protected disclosures to him or to any other
authority and found that the appellant did not prove by preponderant evidence
that his disclosures were a contributing factor in his removal . ID at 38-39.
¶25 As set forth above, 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 so und” reasons for
doing so. Haebe, 288 F.3d at 1301 . Here, the administrative judge explicitly
relied upon the deciding official’s demeanor in finding that he was not aware of
the appellant’s disclosures when he took the removal action. The appellant has
not set forth sufficiently sound reasons for overtu rning the administrative judge’s
credibility determination. Although the appellant contends that an investigator
uncovered alleged wrongdoing by the deciding official, this does not establish
that the deciding official was aware of the appellant’s disclos ures. Further, the
appellant’s general assertion in his response to the proposal notice that he was
16
being retaliated against due to his “knowledge” of fraud, waste, and abuse, and
that he notified his supervisors and congressional sources of “these issues ,” IAF,
Tab 5 at 6, does not establish knowledge by the deciding official of any of the
particular disclosures found to be protected in this case. Moreover, the appellant
has not described the testimony in question of the witnesses he refers to on
review nor has he shown that any such testimony establishes a basis for reversing
the administrative judge’s decision. PFR File, Tab 4 at 25. Finally, the appellant
has not identified any agency authority that required the deciding official to
recuse himself from deciding the appellant’s case. Id. at 27. Thus, we find that
the appellant has shown no basis for disturbing the administrative judge’s
determination that he did not prove reprisal for whistleblowing.
The appellant has not shown that the administrative judge erred when he found
that the penalty of removal was reasonable.
¶26 The appellant asserts that the penalty is unreasonable because the
administrative judge improperly sustained certain specifications. PFR File, Tab 4
at 31-32. As set forth above, however, the appellant has not shown that the
administrative judge erred in sustaining those spe cifications. Thus, he has shown
no basis for disturbing the administrative judge’s findings regarding the penalty.
¶27 Accordingly, we deny the appellant’s petition for review and affirm the
initial decision’s determination to sustain the appellant’s removal.
NOTICE OF APPEAL RIGHTS 3
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
3
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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
18
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 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 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. 4 The court of appeals must receive your petition for
4
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
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 wa rrants 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.