UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARL C. MORRIS, DOCKET NUMBER
Appellant, DC-0752-17-0441-I-1
v.
DEPARTMENT OF DATE: January 19, 2024
TRANSPORTATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Carl C. Morris , Prince Frederick, Maryland, pro se.
Paul Sanchez , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which reversed the appellant’s removal
and denied his affirmative defenses. For the reasons discussed below, we
GRANT the agency’s cross petition for review and VACATE the portion of the
initial decision that found that the agency failed to prove its charge. We
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the appeal for further analysis of the agency’s charge and, if necessary,
analyses of the nexus between the sustained misconduct and the efficiency of the
service, as well as the reasonableness of the penalty. We DENY the appellant’s
petition for review.
BACKGROUND
¶2 The appellant most recently held the GS-14 position of Mathematical
Statistician at the agency’s Office of Statistical and Economic Analysis (OSEA),
within the Bureau of Transportation Statistics (BTS). Initial Appeal File (IAF),
Tab 4 at 41. In October 2016, the appellant’s first-line supervisor—the Assistant
Director of OSEA—informed the appellant that the agency was placing him on a
performance improvement plan (PIP). E.g., id. at 61, 102. She then scheduled a
meeting with him to discuss the PIP, later that same day, so the appellant could
review the associated materials in the interim. Id. at 61-62, 102.
¶3 When the Assistant Director scheduled the aforementioned meeting to
discuss the PIP, the appellant requested a neutral observer. Id. at 62, 103. The
Assistant Director then moved the meeting to the BTS Director’s office, but the
appellant objected, asserting that the BTS Director was not a neutral observer.
Id. at 62, 76, 103. He further asserted that if a neutral observer was not arranged,
he would consider it a “direct threat to [his] safety.” Id. at 76. Ultimately, a
different third-party observer—the Associate Director of Physical and Technical
Security—agreed to attend the PIP meeting. Id. at 62, 76, 103.
¶4 At the scheduled PIP meeting with the Assistant Director and the third -party
observer, the appellant took out a pair of glasses, then reached into his pocket and
pulled out a knife. Id. at 62, 103. While the parties have described the exact
language the appellant used differently, they all agree that he stated something to
the effect of, “This is not a threat. I need to fix my glasses. I always carry a
pocketknife.” Id. at 62, 103, 107; Hearing Transcript, Day 1 (HT1) at 288-89
3
(testimony of the appellant); Hearing Transcript, Day 2 (HT2) at 374-75
(testimony of the third-party observer), 456 (testimony of the Assistant Director).
¶5 When the PIP meeting ended, the Assistant Director returned to her office
and locked the door. IAF, Tab 4 at 103. There appears to be no dispute that she
found the appellant’s actions unsettling. In both a contemporaneous email she
sent to the BTS Director, and a subsequent memorandum she drafted with further
details, the Assistant Director described herself as shaking and scared. Id.
at 103-04, 107. A memorandum from the BTS Director reflects similarly,
detailing how she went to check on the Assistant Director and found her shaking
and crying behind her locked office door. Id. at 100. The third-party observer’s
memorandum about the incident described the appellant’s behavior as “very
inappropriate,” and indicated that he had “succeeded in intimidating” the
Assistant Director. Id. at 105-06.
¶6 The agency proposed the appellant’s removal based on a single charge of
conduct unbecoming. Id. at 95-98. The corresponding narrative provided as
follows:
On Monday October 24, 2016, you met with your supervisor, [the
Assistant Director] at approximately 3:00 PM to discuss a Notice of
Unacceptable Performance and Opportunity to Improve that was
issued to you that morning. At your behest, [the third-party
observer] attended this meeting as a neutral observer. You started
the discussion by stating that the Notice was issued in retaliation for
several complaints you had filed with the Departmental Office of
Civil Rights and accused [the Assistant Director] of changing the
standards and deliverables described in your performance plan.
After explaining that this was untrue, [the Assistant Director]
expressed that the purpose of the meeting was not to argue about the
contents of the notice but to walk through the plan, provide you an
opportunity to ask questions, and set out the first tasks. You then
took out a computer tablet and a pair of black framed glasses. You
reached into the front right pocket of your pants and pulled out a
pocket knife while stating, “This is not a threat. I need to fix my
glasses.” You then proceeded to adjust the glass frames with your
knife. While engaged in this activity, you looked at [the Assistant
Director] and stated, “I always carry a knife.” [The Assistant
4
Director] quickly ended the meeting after you produced the knife and
agreed to send future work requests by email. She returned to her
office and locked the door.
[The Assistant Director] prepared a statement to document the
October 24th meeting. In this statement she expressed that she found
both your words and your actions confusing because she did not
recall having ever seen you with glasses before that moment. She
also stated that she had never seen you with a knife, nor heard you
discuss carrying one on your person. Her statement clearly conveyed
that she was fearful for her safety after this incident. This is
corroborated by a statement prepared by [the third-party observer].
He explained that he went to [the Assistant Director’s] office
following the meeting and had to identify himself after knocking
before she would unlock her door to let him in. When [the Assistant
Director] opened the door to [the third-party observer], she expressed
to him that she was very shaken by the appearance of the knife.
[The BTS Director] also provided a statement in which she described
[the Assistant Director’s] appearance and reaction immediately after
the incident. [The BTS Director] indicated that she went to see [the
Assistant Director] after receiving her email reporting the incident.
[The BTS Director] explained that she had to knock on [the Assistant
Director’s] locked door and identify herself before [the Assistant
Director] opened the door. [The BTS Director] observed that, when
[the Assistant Director] finally did open the door, she was shaking
and crying. [The BTS Director] told her to go home and suggested
that she telework the following Monday, October 31, 2016, so that
she would not have to be in the office with you.
After meeting with [the Assistant Director], [the BTS Director] sent
an email to [the Assistant Secretary for Research and Technology
(OST-R)], and [the Executive Director of OST-R] to notify them of
this incident. In this email, she explained that, as a direct result of
this incident, [the Assistant Director] no longer felt free to maintain
the open door office policy she used to practice. This observation
was confirmed in an email [the Assistant Director] sent on
October 31, 2016, in which she stated her intent to remain in her
locked office while you are present at the worksite. Consequently,
you were placed on administrative leave to ensure that you would no
longer disrupt the office environment.
While it is unclear whether the knife you exhibited exceeded the
2-and-a-half inch limit that is permissible on Federal facilities, it is
my belief that the timing and circumstances surrounding this incident
5
convey your deliberate efforts to intimidate and cause anxiety to
your supervisor. As such your conduct was disruptive to the
workplace and cannot be tolerated.
Id. at 95-96. In the penalty portion of the proposed removal, the proposing
official described how the agency had previously issued the appellant a written
reprimand for rude and disrespectful behavior in one instance and a 5-day
suspension for conduct unbecoming and failure to follow supervisory instructions
in another. Id. at 96. He further described how the appellant’s latest actions
reflected an increase in the severity of his misconduct, and the Assistant Director
no longer felt that she could move about the office freely and safely. Id. at 96-97.
¶7 The appellant responded to his proposed removal, acknowledging that he
pulled out the knife during the PIP meeting, but denying that he did so to
purposefully intimidate or scare the Assistant Director. Id. at 51-63. The
deciding official sustained the removal, id. at 41-44, and this appeal followed,
IAF, Tab 1.
¶8 After developing the record and holding the requested hearing, the
administrative judge reversed the appellant’s removal. IAF, Tab 83, Initial
Decision (ID) at 1. He found that the gravamen of the agency’s charge was that
the appellant deliberately intimidated his supervisor, thereby disrupting the
workplace, but the charge failed because the agency was unable to prove the
appellant’s intent. ID at 2-9. The administrative judge then considered but
denied the appellant’s claims of equal employment opportunity (EEO) reprisal
and discrimination, ID at 9-13, whistleblower reprisal, ID at 13-16, harmful
procedural error, and violation of his right to due process, ID at 16-17.
¶9 The appellant has filed a petition for review, where he appears to reassert
each of the affirmative defenses addressed below. Petition for Review (PFR)
File, Tab 1. The agency has filed a cross petition for review, arguing that the
administrative judge erred in finding the charge unproven. PFR File, Tab 3.
Each party filed a response. PFR File, Tabs 7-8.
6
¶10 In addition to the aforementioned pleadings, the appellant moved to dismiss
the agency’s cross petition for review because the agency indicated that it
intended to provide interim relief, but it had not done so by the time of its cross
petition. PFR File, Tab 6 (referencing PFR File, Tab 4 at 4). That motion is
denied. The agency presented argument and evidence that it did provide interim
relief over the weeks that followed its cross petition for review, and the appellant
has not presented any argument or evidence to the contrary, despite having the
opportunity to do so. Compare PFR File, Tab 9 (the Board’s show cause order,
requesting additional information about the status of interim relief from both
parties), with PFR File, Tab 10 (the agency’s response, with argument and
evidence that it had reinstated the appellant and provided him with back pay).
DISCUSSION OF ARGUMENTS ON REVIEW
We remand this appeal for further analysis of the agency’s charge.
¶11 As previously stated, the administrative judge found that the gravamen of
the agency’s conduct unbecoming charge was that the appellant engaged in
“deliberate efforts to intimidate and cause anxiety to [his] supervisor,” thereby
causing “disrupti[on] to the workplace.” IAF, Tab 77 at 1; ID at 2. We agree
with this interpretation of the charge, which the agency does not dispute in its
cross petition for review. What the agency does dispute is the administrative
judge’s conclusion that the agency failed to establish the requisite element of
intent. E.g., PFR File, Tab 3 at 9-18. On that point, we find that remand is
required for further adjudication.
¶12 There is little disagreement about the appellant’s actions, despite the
substantial disagreement about what he intended and some conflicting accounts
about his particular word choice, the timing of his actions, and the size of the
knife. Most notably, the appellant has acknowledged that he insisted upon a
neutral observer at the PIP meeting for his own safety and, during that meeting,
7
he pulled out a knife while stating, “this is not a threat,” and indicating that he
needed to fix his glasses. IAF, Tab 4 at 62, 76.
¶13 There is also an abundance of evidence reflecting the impact of the
appellant’s actions. Contemporaneous documents and hearing testimony from
multiple individuals all demonstrate that the Assistant Director was unsettled by
the appellant’s actions, so much so that she returned to her office shaking and
crying; she locked her door out of fear for her safety; and she limited the amount
of time spent outside her locked office. E.g., IAF, Tab 4 at 100, 103-07; HT1
at 93, 96 (testimony of the BTS Director); HT2 at 387 (testimony of the
third-party observer), 469 (testimony of the Assistant Director). While the
appellant has offered rationales for why he did not believe the Assistant Director
should have been fearful, including his assertion that she is a “Texan with a black
belt,” IAF, Tab 4 at 53, he has not substantively or persuasively argued that she
was not fearful. In fact, the appellant asserted that the Assistant Director was
“extremely nervous” even before he pulled out his knife. 2 HT1 at 272-73
(testimony of the appellant). He also acknowledged that he was upset with the
Assistant Director, he had animosity toward her, and his PIP meeting with her
was heated. Id. at 274, 281, 288 (testimony of the appellant). Further, the
appellant testified that, in hindsight, “it was a misjudgment to pull [his] pocket
knife out of [his] pocket in that situation.” Id. at 283 (testimony of the
appellant).
¶14 So, the question that remains is whether the appellant intended to intimidate
his supervisor. The administrative judge found that the agency failed to prove
this element. ID at 4-9. He determined that there was no basis for concluding
that the appellant had any reason for his actions other than the reason the
appellant provided—that he only pulled out a knife during the PIP meeting to
2
The appellant surmised that the Assistant Director was most likely nervous because
she was being manipulated and coerced into lying about both the appellant’s conduct
and performance to ultimately have him removed, and she knew what she was doing
was wrong. HT1 at 273-82 (testimony of the appellant).
8
adjust his glasses. ID at 8. The administrative judge characterized this
explanation as “unchallenged.” ID at 9. However, one of the allegations
underlying the agency’s charge did challenge that explanation. The agency
alleged that it believed the appellant had deliberately acted as he did to intimidate
his supervisor. IAF, Tab 4 at 96. Moreover, that supervisor and witness to the
appellant’s actions, the Assistant Director, provided direct testimony about what
she believed the appellant intended—that he “clearly wanted [her] to feel
threatened,” and “very clearly wanted [her] to feel that [she] would not be safe in
the office.” HT2 at 537 (testimony of the Assistant Director). Accordingly, we
disagree with the administrative judge’s description of the appellant’s explanation
as unchallenged.
¶15 At the heart of this appeal is a dispute about whether the appellant intended
to merely adjust his glasses, as the appellant alleged, or intended to intimidate his
supervisor under the guise of adjusting his glasses, as the agency alleged.
Resolution of that dispute requires a thorough credibility determination about the
appellant’s explanation for his actions. To resolve credibility issues, an
administrative judge must identify the factual questions in dispute, summarize the
evidence on each disputed question, state which version he believes, and explain
in detail why he found the chosen version more credible, considering such factors
as: (1) the witness’s opportunity and capacity to observe the event or act in
question; (2) the witness’s character; (3) any prior inconsistent statement by the
witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the witness’s
version of events by other evidence or its consistency with other evidence; (6) the
inherent improbability of the witness’s version of events; and (7) the witness’s
demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).
Although the administrative judge did not explicitly indicate that he was making a
credibility determination, he generally alluded to some credibility factors to
determine that the agency failed to prove the appellant’s intent. To the extent
that this constituted a credibility determination, we find it incomplete.
9
¶16 The administrative judge found that the appellant had consistently provided
the same explanation for his actions—a loose screw in his glasses—and that
explanation was consistent with all witnesses’ recollection of him then acting as
if he was using the knife to adjust his glasses. ID at 7-8. He further found that
while this may have been “odd behavior,” it was plausible that the appellant
intended to adjust his glasses without intending to intimidate his supervisor. ID
at 8. However, there were other factors that the administrative judge did not
explicitly address in the initial decision, which we find especially relevant.
¶17 For example, while the appellant’s explanation for his actions is plausible,
it seems somewhat improbable that the appellant had no ulterior motive for
displaying his knife, given the attendant circumstances. Among other things,
those circumstances include the appellant’s report from a few months before that
his family was concerned management may try to kill him, IAF, Tab 82 at 1-2, his
demand for a third-party observer at the PIP meeting for his own safety, IAF,
Tab 4 at 76, his admitted animosity toward the Assistant Director and belief that
she had concocted unfounded rationales for the PIP as a pretext to have him
removed, HT1 at 273-82 (testimony of the appellant), and the appellant’s other
actions during the PIP meeting, which the third-party observer described as
argumentative and the administrative judge described as cantankerous, IAF, Tab 4
at 105; HT2 at 374, 378 (testimony of the third-party observer); ID at 8.
¶18 Another factor that may weigh against the appellant’s credibility about his
intent when displaying the knife is his character, which the administrative judge
described elsewhere in the initial decision as including extreme and volatile
sensitivity to criticism. See ID at 11. With that description, the administrative
judge also recounted a prior instance where the appellant reportedly yelled at the
Assistant Director and others during a discussion of his work performance, the
numerous witnesses to the incident, and the appellant’s apparent claim that these
witnesses were conspiring to make false claims about the incident. See ID
at 11-12. If the appellant provided false testimony about the incident, that could
10
call into question the truthfulness of the appellant’s claims concerning his intent
with the knife. See Skellham v. U.S. Postal Service, 90 M.S.P.R. 361, ¶ 13 (2001)
(stating that an individual’s false statement regarding one matter may call into
question her credibility regarding other matters as well).
¶19 One of the other factors that may be relevant to the question at hand is the
various witnesses’ demeanor. The administrative judge, as the hearing officer, is
in the best position to assess the various witnesses’ demeanor. Parker v.
Department of Veterans Affairs, 122 M.S.P.R. 353, ¶ 7 (2015); see Haebe v.
Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
¶20 In sum, the appellant’s intent was disputed and the administrative judge
erred in suggesting otherwise. Plus, the administrative judge did not make the
detailed credibility findings necessary to decide the appellant’s intent. We
therefore vacate his determination that the agency failed to prove the intent
element of its charge, and we remand the matter for further adjudication. In a
remand initial decision, the administrative judge should ensure that the analysis
of the appellant’s intent and the agency’s charge includes credibility
determinations that consider the factors we discussed above and any others the
administrative judge deems relevant.
The appellant failed to establish his affirmative defenses.
¶21 The administrative judge considered but denied the appellant’s claims of
EEO reprisal and discrimination, ID at 9-13, whistleblower reprisal, ID at 13-16,
harmful procedural error, and violation of his right to due process, ID at 16-17.
On review, the appellant has at least alluded to each, so we will address each in
turn. PFR File, Tab 1 at 4-25.
Discrimination and EEO reprisal
¶22 Throughout this appeal, both below and on review, the appellant has
presented exhaustive allegations of wrongdoing that are, at times, difficult to
11
reconcile with the specific matters at issue in this removal appeal. 3 E.g., IAF,
Tab 70 at 6-13; PFR File, Tab 1 at 4-26. For example, the appellant’s statement
of facts on review contains assertions of wrongdoing dating back to 2010,
six years before his removal. PFR File, Tab 1 at 6-21. Among them are
allegations that management has subjected both him and others to discrimination
and reprisal through a pattern of defamation, the withholding of promotions, the
imposition of discipline, and the lowering of performance ratings. E.g., id.,
at 4, 7.
¶23 To the extent that the appellant presented discrimination and EEO reprisal
affirmative defenses, the administrative judge summarized them as follows: The
appellant filed 11 EEO complaints between February 2010 and August 2016. ID
at 11. He also had an accident in 2011, resulting in reconstructive surgery and a
slight facial disfigurement. Id. According to the appellant, the agency both
retaliated against him based on his EEO activity and discriminated against him
based on a perception that he had a disability—brain damage. Id. He attempted
to support these claims by recounting a lengthy history of contentiousness. Id.
¶24 In analyzing the appellant’s claims of discrimination and retaliation for
prior EEO activity, the administrative judge applied the standard set forth by the
Board in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), clarified
by Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 30-31
(2016), and Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 23-24. Applying that standard, the administrative judge found that the
appellant failed to prove by preponderant evidence that his perceived disability or
his prior EEO activity was a motivating factor in the agency’s actions. ID
at 11-13.
3
In a separate individual right of action appeal, the appellant alleged that the agency
had committed 33 personnel actions in retaliation for his protected whistleblowing
activity, but that case was dismissed for lack of jurisdiction. See, e.g., Morris v.
Department of Transportation, MSPB Docket No. DC-1221-17-0355-W-1, Initial
Decision (Jan. 12, 2018). The appellant petitioned for review of that initial decision,
and we will issue a separate decision resolving that petition for review.
12
¶25 Title VII of the Civil Rights Act of 1964, as amended, requires that Federal
personnel actions “shall be made free from any discrimination based on race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). An appellant
may prove an affirmative defense of discrimination or retaliation under this Title
by showing that the prohibited consideration was at least a motivating factor in
the contested personnel action. Pridgen, 2022 MSPB 31, ¶¶ 20-24 40-42. This
same burden applies to an affirmative defense of disparate treatment disability
discrimination. Id., ¶¶ 40, 42. However, to prove a claim of retaliation under
the Rehabilitation Act of 1973, the appellant must prove but -for causation, which
is a higher burden than motivating factor. Id., ¶¶ 44-48.
¶26 In this case, the administrative judge found that the appellant did not prove
that any form of prohibited discrimination or retaliation was a motivating factor
in his removal. IAF, Tab 77 at 2-4; ID at 9-11. In short, he found that while the
record reflected ongoing workplace dysfunction, that dysfunction was
consistently generated by the appellant’s extreme sensitivity to criticism and
refusal to accept appropriate supervision, not discrimination or EEO reprisal. ID
at 11-13. We agree. To the extent that the administrative judge should have
applied a but-for rather than a motivating factor standard to some of these claims,
the appellant’s substantive rights were not prejudiced; because the appellant did
not prove motivating factor causation, be necessarily did not prove but -for
causation. See Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 33 (modifying
an initial decision to recognize that the more stringent but -for standard applied
because an employee’s EEO reprisal claim arose under the Rehabilitation Act,
while affirming the administrative judge’s conclusion that the employee failed to
satisfy even the lesser motivating factor standard); Haas v. Department of
Homeland Security, 2022 MSPB 36, ¶¶ 31-34 (same).
¶27 In his petition for review, the appellant asserts that he “indisputably
showed” that “he was treated disparately as compared to before” his 2010 EEO
activity. PFR File, Tab 1 at 23. This assertion is accompanied by a citation to a
13
single document in the record. That document is a timeline he created, dating
back to 2005, wherein the appellant identifies things such as his EEO activity, his
performance ratings, disciplinary actions, and what he characterizes as physical
security threat surveillance. IAF, Tab 69 at 4, Tab 70 at 17. The appellant also
asserts that he “indisputably showed” that management began fabricating
defamatory rumors about him being dangerous in February 2014, in relation to a
perceived disability that became a pretext for his eventual removal. PFR File,
Tab 1 at 23.
¶28 Even if the appellant’s timeline is an accurate representation of events, we
do not find it persuasive. The appellant’s timeline identifies 23 dates on which he
either made initial EEO contact or filed a formal EEO complaint over 7 years,
along with 3 dates on which he was disciplined, 3 dates he identifies as threat
surveillance, and the dates of his annual performance ratings. Without more, we
do not find the timing of any of these actions particularly suspicious. See
Pridgen, 2022 MSPB 31, ¶ 24 (describing various types of evidence in support of
a discrimination claim, such as direct evidence, suspicious timing, ambiguous
statements, behavior towards other in the protected group, and other bits and
pieces from which an inference of improper motive might be drawn).
¶29 More broadly, while we have considered all of the appellant’s arguments
and assertions, to the extent that they are relevant in this removal appeal, we
discern no basis for concluding that he has proven either disability discrimination
or EEO reprisal by preponderant evidence. The appellant has presented little
more than disagreement with the administrative judge’s conclusion that the
longstanding contentiousness reflected throughout the record is attributable to the
appellant, not discrimination or EEO reprisal—a conclusion with which we agree.
See Gardner, 123 M.S.P.R. 647, ¶¶ 31-32 (finding that an administrative judge
properly considered the evidence as a whole in finding that an employee failed to
prove her discrimination and EEO reprisal claims, and her arguments on review
amounted to mere disagreement).
14
¶30 We separately note that the appellant alluded to sex discrimination, both
below and on review, IAF, Tab 70 at 6-7; PFR File, Tab 1 at 7, 21, but the initial
decision only explicitly addressed disability discrimination, ID at 9-13. To the
extent that the appellant intended to bring an affirmative defense of sex
discrimination separate from his disability discrimination claim, we find that it
similarly fails. In vaguely referring to sex discrimination, the appellant cited the
same timeline discussed above. E.g., IAF, Tab 70 at 6, 17; PFR File, Tab 1 at 21.
That timeline seems to suggest that some women were rated higher than the
appellant and some other men between 2010 and 2016, and one “younger female
comparator” in particular was promoted from GS-09 to GS-14 over a 5 -year
period, as the appellant remained a GS-14. IAF, Tab 70 at 6-7, 17. Even if we
accept the facts in the timeline as true, the appellant has not directed us to
anything that would establish, by preponderant evidence, that his removal was
improperly motivated by sex. His speculation, based on vague comparisons and
unsupported by persuasive evidence, is insufficient.
Whistleblower reprisal
¶31 When whistleblower reprisal claims are made in the context of an otherwise
appealable action, as here, the appellant must prove by preponderant evidence
that he made a protected disclosure pursuant to 5 U.S.C. § 2302(b)(8) or engaged
in protected activity as defined in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D)
and that the disclosure or protected activity was a contributing factor in the
personnel action at issue. Pridgen, 2022 MSPB 31, ¶ 49; Ayers v. Department of
the Army, 123 M.S.P.R. 11, ¶ 12 (2015); Alarid v. Department of the Army,
122 M.S.P.R. 600, ¶ 12 (2015); see 5 U.S.C. § 1221(e)(1). If the appellant makes
this showing, the burden shifts to the agency to prove by clear and convincing
evidence that it would have taken the personnel action absent the protected
disclosure or activity. Pridgen, 2022 MSPB 31, ¶ 49.
¶32 A protected disclosure is a disclosure of information that the appellant
reasonably believes evidences any violation of any law, rule, or regulation, gross
15
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8); Shannon v.
Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 22 (2014). To demonstrate
that he had a reasonable belief that he made a protected disclosure, an appellant
need prove only that a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee could reasonably
conclude that the agency’s actions evidenced one of the categories of wrongdoing
listed in 5 U.S.C. § 2302(b)(8). Shannon, 121 M.S.P.R. 221, ¶ 22.
¶33 To prove the contributing factor criterion, an appellant may rely on the
knowledge/timing test, i.e., proof that the official taking the personnel action
knew of the whistleblowing and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the
whistleblowing was a contributing factor in the personnel action. 5 U.S.C.
§ 1221(e)(1). But the knowledge/timing test is not the only way to demonstrate
the contributing factor element. Dorney v. Department of the Army, 117 M.S.P.R.
480, ¶ 14 (2012). The Board will also consider other evidence, such as evidence
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed towards the
official taking the action, or whether these individuals had a desire or motive to
retaliate against the appellant. Id., ¶ 15.
¶34 Although the appellant generally alleged that his removal was the result of
whistleblower reprisal, the administrative judge found that the precise scope and
nature of his alleged whistleblowing was largely unclear. ID at 15. He
recognized that one alleged disclosure the appellant raised pertained to an EEO
complaint. Id. (referencing IAF, Tab 70 at 39-40). 4 In short, the appellant
emailed several agency officials to assert that the agency’s incomplete response
to a discovery request was felonious and constituted a possible violation of
4
The administrative judge cited a different piece of evidence, but it appears that this
was a typo. Compare ID at 15 (citing IAF, Tab 30 at 4-5), with IAF, Tab 70 at 39-40.
16
perjury and obstructions statutes. IAF, Tab 70 at 39-40. The administrative
judge also recognized that the appellant referenced complaints he raised about
him and a co-worker being bullied by supervisors with respect to work
assignments and performance evaluations. ID at 15; see Hearing Transcript,
Day 3 (HT3) at 557-59 (testimony of coworker), 659-60 (closing argument of the
appellant); IAF, Tab 74 at 34-35. However, the administrative judge found that
the appellant failed to meet his burden of proving that either of these alleged
disclosures was protected. ID at 15-16.
¶35 On review, the appellant alleges that he “documented in the record his
disclosures of violations of laws and regulations and abuses of authority from
July 2010 on.” PFR File, Tab 1 at 5 (citing IAF, Tab 35 at 4; Tab 36 at 4; Tab 37
at 4; Tab 38 at 4; Tab 70 at 17, 39; Tab 74 at 8, 12, 29, 33, 36; Tab 75
at 152, 154, 171, 192, 194, 199, 205, 206, 244, 360-63, 449, 493, 496).
Elsewhere in the petition, the appellant characterized his disclosures as ones
about perjury, obstruction, and abuses of authority, id. at 6, while also referring
to a Board decision which recognized that disclosure of an individual’s
intentionally false statement to the Government Accountability Office or in an
EEO investigation could be protected, id. at 22 (referencing Bravo v. Department
of Veterans Affairs, 83 M.S.P.R. 653, ¶ 10 (1999)). The appellant has not
otherwise presented any substantive argument pertaining to his burden of proof.
¶36 Although we will recognize and analyze more alleged disclosures than
discussed in the initial decision, we agree with the administrative judge’s
conclusion that the appellant failed to meet his burden. For several of the alleged
disclosures the appellant cited, even if we were to assume that they were
protected, they fall outside the time frame from which the knowledge/timing test
could be satisfied. 5 Compare IAF, Tab 74 at 8, 12, 29, 33 -36 (evidence of alleged
5
At least some of what the appellant has directed us to was activity protected under
5 U.S.C. § 2302(b)(9)(C), rather than disclosures covered by 5 U.S.C. § 2302(b)(8),
because they were complaints to the agency’s Office of Inspector General. IAF, Tab 74
at 8-12, Tab 75 at 152; see Pridgen, 2022 MSPB 31, ¶ 62 (recognizing that any
17
disclosures between July 2010 and February 2014), Tab 75 at 152, 154, 171
(same), with IAF, Tab 4 at 95-98 (the appellant’s proposed removal, dated
December 2016); see Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 21
(2015) (recognizing that a personnel action taken within approximately 1 to
2 years of an employee’s disclosures satisfies the knowledge/timing test for
purposes of establishing the contributing factor element). Plus, the appellant has
failed to articulate any other basis for us to find that these disclosures were a
contributing factor in his removal, and we are aware of none. See Dorney,
117 M.S.P.R. 480, ¶¶ 14-15. As detailed throughout this decision, the agency’s
reasons for taking the personnel action were strong. We find that to be so, even
with the outstanding questions of the appellant’s credibility and whether he
intended the fear and intimidation he most certainly caused. Moreover, it does
not appear as if any of these older disclosures implicated the officials taking the
removal action or that they would have motivated the pertinent officials to
retaliate. IAF, Tab 74 at 8, 12, 29, 33-36, Tab 75 at 152, 154, 171.
¶37 For several other alleged disclosures that are more recent in time, the
appellant has not proven that they are protected. The majority of the evidence the
appellant has cited consists of the appellant making vague or conclusory
allegations of wrongdoing, without any evidentiary support of either the alleged
wrongdoing or the appellant’s reasonable belief about the same. Gabel v.
Department of Veterans Affairs, 2023 MSPB 4, ¶ 6; see Rzucidlo v. Department
of the Army, 101 M.S.P.R. 616, ¶ 13 (2006) (recognizing that disclosures must be
specific and detailed, not vague allegations of wrongdoing regarding broad or
imprecise matters). To illustrate, the appellant cited September 2015 emails to
several managers in which he vaguely recounts how he once confronted managers
for harassment and lying in sworn statements, then later received unsatisfactory
performance appraisals and a reprimand. IAF, Tab 35 at 4, Tab 36 at 4, Tab 37
disclosure of information to OIG, regardless of the content, is activity protected under
5 U.S.C. § 2302(b)(9)(C)).
18
at 4, Tab 38 at 4, Tab 75 at 192, 194, 360-63. He also cited October 2015 notes
and emails in which the appellant generally alleged that several officials made
false reports about him being a potential security threat. IAF, Tab 75 at 199, 205,
493, 496-97. Next, the appellant cited a June 2016 email in which he alleged that
the agency representative in his EEO case withheld material information from his
discovery response in violation of perjury and obstructions statutes. IAF, Tab 70
at 39. Lastly, the appellant cited an unsigned and undated document in which he
once again appears to allege false statements and obstruction of justice on the part
of agency managers. IAF, Tab 75 at 206. Without more, the appellant has not
proven, by preponderant evidence, that any of these rise to the level of a
protected disclosure. E.g., Rzucidlo, 101 M.S.P.R. 616, ¶¶ 17-18 (finding that
alleged disclosures were not protected when they consisted of general complaints
about how he was treated by the agency and an unsupported allegation that
someone lied by complaining of unwelcomed attention).
¶38 In another series of emails the appellant cited, from December 2015, the
appellant presented a more specific allegation. These emails assert that the
agency violated a particular collective bargaining agreement provision by failing
to remove his reprimand 2 years after its issuance. IAF, Tab 75 at 244-46.
However, the appellant has not identified anything more than the assertion of
both the collective bargaining provision and the associated violation. He has not,
for example, directed us to the actual collective bargaining agreement or his basis
for asserting that the agency had violated the same. See Tines v. Department of
the Air Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review
must contain sufficient specificity to enable the Board to ascertain whether there
is a serious evidentiary challenge justifying a complete review of the record);
Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (finding that,
before the Board will undertake a complete review of the record, the petitioning
party must explain why the challenged factual determination is incorrect and
19
identify the specific evidence in the record which demonstrates the error), review
denied per curiam, 669 F.2d 613 (9th Cir. 1982).
¶39 A final email the appellant cited, which he sent in February 2016, contains
yet another allegation that an official made knowingly false statements and
obstructed justice. IAF, Tab 75 at 449-50. With this allegation, the appellant
added some detail by attaching his own sworn statement and statements made by
the official at issue in concert with one of the appellant’s EEO complaints. Id.
at 451-69. These documents establish that the official initially stated that he sent
a particular email to the appellant, and then later corrected himself to indicate
that he sent the email to someone in the appellant’s chain of command. Id.
at 449, 457, 461, 468. While the appellant has characterized this and numerous
other statements as perjury and obstruction of justice, he has not shown that he
had a reasonable belief of the same. Instead, the appellant has merely speculated
that the agency official’s misstatement was more than a simple mistake and rose
to the level of a criminal violation.
¶40 In conclusion, the appellant failed to meet his burden of proving that he
made protected disclosures or engaged in protected activity that were a
contributing factor in his removal, so his whistleblower reprisal claim is
unavailing.
Harmful error or due process violation
¶41 The administrative judge considered but found no merit to the appellant’s
harmful procedural error claim—that the agency erroneously considered his 2011
reprimand in the removal action. ID at 16. He also considered but found no
merit to the appellant’s due process claim—that the deciding official was biased
against the appellant. ID at 16-17.
¶42 Although the appellant alludes to harmful error and due process on review,
PFR File, Tab 1 at 24, he does not include substantive arguments about either
claim. Instead, the appellant refers to those claims in the context of an argument
that appears to relate to his whistleblower reprisal claim. Id. at 24-25. Without
20
any persuasive support of these accusations, the appellant has failed to establish
any basis for reaching a conclusion contrary to the administrative judge regarding
harmful error or due process. See, e.g., Martinez v. Department of Veterans
Affairs, 119 M.S.P.R. 37, ¶¶ 10-11 (2012) (finding that the appellant has the
burden of establishing a decision maker’s actual bias or an intolerable risk of
unfairness to prove a violation of due process and that a deciding official’s
familiarity with the facts of the case and expressed predisposition contrary to the
appellant’s interests does not constitute a due process violation or harmful error).
ORDER
¶43 For the reasons discussed above, we remand this case to the administrative
judge for further adjudication in accordance with this Remand Order. The
administrative judge may reopen the record and hold a supplemental hearing
concerning the appellant’s credibility and the agency’s charge if the
administrative judge deems it necessary to do so.
¶44 The administrative judge must issue a remand initial decision with complete
credibility findings and must make a new determination about whether the agency
proved its charge. If necessary, the administrative judge must also analyze
whether the agency proved the requisite nexus and the reasonableness of its
penalty.
¶45 To the extent that it is appropriate, the remand initial decision may
incorporate the administrative judge’s prior findings, as supplemented by our
findings in this decision, regarding the appellant’s affirmative defenses. But if
argument or evidence presented on remand affects the analysis of any affirmative
defense, the administrative judge should address such argument or evidence in the
remand initial decision. See Spithaler v. Office of Personnel Management ,
1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all
material issues of fact and law, summarize the evidence, resolve issues of
21
credibility, and include the administrative judge’s conclusions of law and his
legal reasoning, as well as the authorities on which that reasoning rests).
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.