UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELANIE A. MOORE, DOCKET NUMBER
Appellant, DA-0752-15-0289-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: August 25, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Curtis Mitchell, Jr., Midwest City, Oklahoma, for the appellant.
Preston L. Mitchell, Esquire, Tinker Air Force Base, Oklahoma, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal on misconduct charges. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See 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 appellant was employed as a Sheet Metal Mechanic. 2 She was removed
from her position for failure to properly wear personal protective equipment,
discourteous conduct, and failure to follow a direct order. After conducting a
hearing, the administrative judge issued an initial decision finding that the agency
proved all three of its charges, that there was a nexus between the charged
conduct and the efficiency of the service, and that the removal penalty was
reasonable. Initial Appeal File (IAF), Tab 36, Initial Decision (ID) at 2-14. The
initial decision also found that the appellant failed to prove her affirmative
defense that the removal constituted retaliation for filing protected equal
employment opportunity (EEO) complaints. ID at 21-24. 3
2
All the information in this paragraph is taken from the initial decision, and is not
in dispute.
3
The administrative judge noted that the appellant asserted in her appeal that the
removal was not in accordance with law and an abuse of authority, but stated that the
appellant failed to specifically identify any provision of law that was violated in
response to the administrative judge’s Order on Affirmative Defenses. ID at 20 n.8.
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¶3 In her petition for review, the appellant challenges the administrative
judge’s findings on the charges and on the reasonableness of the penalty. Petition
for Review (PFR) File, Tab 1. The agency filed a timely response. PFR File,
Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not shown that the initial decision contains erroneous findings
of material fact.
¶4 The Board will grant a petition for review when the petitioner shows that
the initial decision contained erroneous findings of material fact. 5 C.F.R.
§ 1201.115(a). To be material, an alleged factual error must be of sufficient
weight to warrant an outcome different from that of the initial decision. 5 C.F.R.
§ 1201.115(a)(1). A petitioner who alleges that the administrative judge made
erroneous findings of material fact must explain why the challenged factual
determination is incorrect and identify specific evidence in the record that
demonstrates the error. 5 C.F.R. § 1201.115(a)(2). The 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. Tines v.
Department of the Air Force, 56 M.S.P.R. 90, 92 (1992). In reviewing a claim of
an erroneous finding of fact, the Board will give deference to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly,
on the observation of the demeanor of witnesses testifying at a hearing. 5 C.F.R.
§ 1201.115(a)(2). The Board may overturn determinations based on the
observation of witnesses’ demeanor only when it has “sufficiently sound” reasons
for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002) .
¶5 The appellant’s allegations of erroneous findings of material fact are
conclusory in nature. She has not explained why the challenged factual
determinations are incorrect and identified specific evidence in the record that
demonstrates the error, and her petition lacks the specificity to warrant an
4
inference that there is a serious evidentiary challenge justifying a complete
review of the record. 4 The administrative judge made detailed findings, including
credibility determinations that included reliance on the demeanor of witnesses, in
concluding that the agency proved its charges and that the appellant failed to
prove her affirmative defense of reprisal for protected EEO activity.
¶6 In sum, the appellant has not provided any basis for disturbing the
administrative judge’s findings of fact. See Broughton v. Department of Health &
Human Services, 33 M.S.P.R. 357, 359 (1987) (holding that the Board will not
disturb an administrative judge’s findings of fact when the petition for review
fails to identify any internal inconsistency or inherent improbability in the
administrative judge’s findings, and the initial decision reflects that she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility).
The initial decision correctly determined that the removal penalty was within the
bounds of reasonableness.
¶7 As with the administrative judge’s findings in sustaining the three charges
of misconduct, and in finding that the appellant failed to prove her affirmative
defense of reprisal for protected EEO activity, the appellant has failed to explain
why the administrative judge’s detailed findings on the reasonableness of the
penalty were incorrect. Among other things, she asserts, as “new” evidence, that
she has learned that an agency official who had provided a written statement but
did not testify because he had retired, did not retire on his own accord, and she
contends that other agency witnesses should not be believed because they are
associated with this retired official. PFR File, Tab 1 at 4. Evidence acquired
after issuance of an initial decision that is offered merely to impeach a witness’s
credibility is not generally considered material. Hill v. Department of the Army,
4
For example, she notes that testimony by the agency’s witnesses upon which the
administrative judge relied differed in key respects from that of her testimony and that
she consistently denied the charges of wrongdoing. PFR File, Tab 1 at 3.
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120 M.S.P.R. 340, ¶ 4 (2013). Regardless, the administrative judge did not refer
to this official when analyzing the reasonableness of the penalty.
¶8 The appellant also asserts that the three prior disciplinary actions on which
the deciding official relied in imposing the removal penalty “are in appeal.”
PFR File, Tab 1 at 1. The appellant has provided no evidence for this assertion.
In any event, the mere fact that a prior disciplinary action has been challenged
does not make reliance on that prior discipline inappropriate. When the employee
was informed of the action in writing, the action is a matter of record, and the
employee was permitted to dispute the charges before a higher level of authority
than the one that imposed the discipline, the Board’s review is limited to
determining whether the prior action was clearly erroneous. Bolling v.
Department of the Air Force, 9 M.S.P.R. 335, 339‑40 (1981). The mere fact that
an employee has challenged a prior disciplinary action does not alter this mode of
analysis. Guzman-Muelling v. Social Security Administration, 91 M.S.P.R. 601,
¶ 15 (2002). The appellant has made no showing that any of her three previous
disciplinary actions was clearly erroneous.
¶9 Accordingly, we deny the appellant’s petition for review and affirm the
initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request by regular U.S. mail, the address of the EEOC is:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.