Sheila Clark v. Department of Homeland Security ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHEILA CLARK, DOCKET NUMBER
Appellant, DC-0752-13-0661-I-1
v.
DEPARTMENT OF HOMELAND DATE: February 21, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Phillip R. Kete, Esquire, Chesapeake Beach, Maryland, for the appellant.
Ashley Darbo, Esquire, and Melissa Williams, Esquire, 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
sustained the inappropriate conduct charge, did not sustain the lack of candor
charge, found that she did not prove any of her affirmative defenses, and upheld
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the removal penalty. 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
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. We MODIFY the initial decision to
clarify the allegations of inappropriate conduct, which we sustain, and to
supplement the administrative judge’s analysis of the appellant’s claims of a due
process violation, prohibited discrimination, and reprisal for whistleblowing
disclosures. We VACATE the administrative judge’s penalty analysis, but we
FIND that the removal penalty was reasonable based on the sustained misconduct.
Except as expressly MODIFIED by this Final Order, we AFFIRM the
initial decision.
BACKGROUND
¶2 The relevant background information, as recited in the initial decision, is
generally undisputed. Initial Appeal File (IAF), Tab 91, Initial Decision (ID).
The appellant was a Senior Executive Service (SES) employee in the Chief
Component Human Capital Officer (CCHCO) position at the Federal Emergency
Management Agency (FEMA). ID at 1-2. The agency initiated an investigation
of the appellant in response to an anonymous allegation that she had engaged in
prohibited personnel practices. ID at 2; IAF, Tab 60 at 40-41. As a result of this
3
investigation, the agency determined that the appellant misused her position to
help a friend obtain employment at FEMA and provided him with personally
identifiable information of FEMA employees. ID at 2; IAF, Tab 19 at 15-16,
134-35.
¶3 Effective May 6, 2013, the agency removed the appellant from her CCHCO
position based on charges of inappropriate conduct and lack of candor. ID at 2;
IAF, Tab 6 at 39-52. The appellant filed a Board appeal, requested a hearing, and
asserted several affirmative defenses. ID at 2; IAF, Tabs 1, 57, 65-68. The
appellant subsequently withdrew her hearing request. ID at 2-3; IAF, Tab 75
at 2-3. The administrative judge issued an initial decision that sustained the
inappropriate conduct charge (but not all of the allegations therein), did not
sustain the lack of candor charge, found that the appellant did not prove any of
her affirmative defenses, and concluded that the removal penalty was reasonable.
ID at 3-34.
¶4 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 4, 7-8. On review, the appellant challenges many of the administrative
judge’s findings and conclusions. 2
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved the inappropriate conduct charge.
¶5 In the single specification of this charge, the agency made the following
allegations, among others, against the appellant: (1) she had a personal
relationship with the friend in question; (2) she sought out a position for her
friend in the month or so preceding the March 14, 2011 investigator vacancy
announcement by alleging that her office had a backlog of about 80-100
2
Neither party challenges the administrative judge’s conclusion that the agency did not
prove the lack of candor charge. We affirm the administrative judge’s finding in
this regard.
4
investigations; (3) she assisted her friend in drafting his résumé, contacted agency
officials on his behalf to address prior misconduct issues, and provided her friend
with résumés of other FEMA investigators; 3 (4) she informed her friend that a
vacancy announcement for the investigator position was going to be issued;
(5) she learned that her friend was going to be on the merit promotion certificate
and directed a Human Resources Specialist not to issue the other delegated
examining unit (DEU) certificate; (6) she viewed the certificate of eligibles for
the position to which her friend applied; (7) she sat on the selection panel that
interviewed candidates for the investigator position without disclosing to the
other panel members, her supervisor, or the selecting official he r prior efforts to
assist her friend or her relationship with him; and (8) she provided her friend with
an advantage not authorized by law, rule, or regulation. IAF, Tab 6 at 43-44. 4
¶6 In the initial decision, the administrative judge found that the appel lant and
her friend shared a “close personal relationship” evidenced by the volume and
content of emails between them and the “significant” time and effort that the
appellant expended to assist him in his employment efforts. ID at 5-7; IAF,
Tab 19 at 9 (the agency’s report of investigation “conservatively” estimated that
the appellant and her friend “had several hundred [email] messages that were
personal in nature,” which included messages on weekdays and weekends,
starting as early as 5:20 a.m. and ending as late as 2:22 a.m.), 28 (the appellant
stating in an email to her friend that she “can’t seem to get over” him). We agree.
¶7 The administrative judge noted that it was not per se misconduct for the
appellant to assist her friend with his résumé, but the misconduct arose from her
participation in the interview and selection process of an applicant for whom she
3
The administrative judge concluded that the agency did not prove that the appellant
provided her friend with résumés of other FEMA investigators. ID at 13 n.5. Neither
party challenges this conclusion on review.
4
Although the proposal notice stated that the relevant events oc curred in 2012, this
appears to be a typographical error because most of the relevant events actually
happened in 2011.
5
had demonstrated romantic feelings, coupled with her assistance in drafting and
editing his résumé to submit for employment at the agency. ID at 12-20. The
administrative judge therefore sustained the inappropriate conduct charge. ID
at 20.
¶8 We have considered the appellant’s argument that the agency “expressly”
found that she violated 5 C.F.R. § 2635.702, which prohibits a Federal employee
from using his or her public office for private gain, but the administrative judge
did not find the appellant “guilty” of this offense. PFR File, Tab 4 at 12-14. In
resolving the issue of how a charge should be construed and what elements
require proof, the Board examines the structure and language of the proposal and
decision notices. Boltz v. Social Security Administration, 111 M.S.P.R. 568, ¶ 16
(2009).
¶9 Based on our review of the proposal and decision letters, we find that the
agency’s inappropriate conduct charge did not allege that the appellant violated
5 C.F.R. § 2635.702. The proposal notice contained two charges, entitled
“inappropriate conduct” and “lack of candor,” and included a narrative for each
and a lengthy “Background” section, which discussed various aggravating factors,
including the proposing official’s belief that the appellant’s conduct constituted a
violation of 5 C.F.R. § 2635.702. IAF, Tab 6 at 39-52. The proposing official,
though, does not cite to or otherwise reference 5 C.F.R. § 2635.702 in the
narrative portion of the inappropriate conduct charge.
¶10 In the decision letter, the deciding official discussed the “inappropriate
conduct” charge and the “lack of candor” charge under separate headings. Id.
at 39-40. However, apart from the headings, the organization of the decision
letter is confusing. For example, the deciding official stated under the “lack of
candor” heading that she sustained the removal based on her decision to sustain
the inappropriate conduct charge. Id. at 40. Under the “inappropriate conduct”
heading, the deciding official noted various aggravating factors, including the
seriousness of the offense, the appellant’s failure to take responsibility for her
6
actions, her conclusion that the appellant’s conduct constituted a violation of
5 C.F.R. § 2635.702, and the fact that she no longer had confidence in the
appellant’s ability to perform her assigned duties. Id.¶11 Having reviewed the structure and content of the proposal and decision
letters, we conclude that the agency did not include, as an allegation of the
inappropriate conduct charge, that the appellant’s conduct violated 5 C.F.R.
§ 2635.702. Instead, we find that the agency included the allegation that her
conduct violated this regulation as an aggravating factor. Accordingly, the
agency was not required to establish that the appellant violated this regulation to
prove the inappropriate conduct charge.
¶12 The appellant also asserts that there is “zero evidence” to support the
administrative judge’s conclusion that she padded the payroll and manipulated her
friend’s selection. PFR File, Tab 4 at 14-30. In support of this assertion, she
makes the following contentions: (1) she did not cause the posting for the
investigator position or the decision to fill a second investigator position; (2) she
did not restrict the number of applicants to be considered; and (3) her service on
the interview panel without informing the other panel members or the selecting
official of her relationship with her friend did not provide him an unfair
advantage. Id.¶13 We have considered the appellant’s assertion that the agency did not prove
its allegation that, in the “month or two preceding the [March 14, 2011] vacancy
announcement,” she “sought out a position for” her friend within the Office of the
Chief Security Officer (OCSO) “by alleging to OCSO that [her] office had a
backlog of approximately 80-100 investigations.” PFR File, Tab 4 at 15; IAF,
Tab 6 at 43. Although this portion of the proposal notice focused on events that
occurred before the vacancy announcement was issued, the administrative judge
appeared to discuss the appellant’s March 29, 2011 email—which was sent after
the vacancy announcement closed—to support her conclusion that the agency
proved this allegation. ID at 8-9. Because this email was not sent in the “month
7
or two preceding” the vacancy announcement, we vacate the administrative
judge’s reliance on this email in her analysis of this allegation. 5
¶14 The administrative judge acknowledged that the appellant denied falsifying
backlog information to seek out a position for her friend, but she found the
agency’s evidence more credible on this point because the appellant’s statements
were inconsistent. ID at 9. The administrative judge further found that the
agency proved by preponderant evidence that the appellant emailed OCSO
officials about the investigation backlog to improve the chances for creating a
vacancy for which her friend could apply. Id.¶15 When an administrative judge’s findings are not based on observing
witnesses’ demeanor, the Board is free to reweigh the evidence and substitute its
own judgment on credibility issues. Haebe v. Department of Justice, 288 F.3d
1288, 1302 (Fed. Cir. 2002). Here, however, the consistency of the appellant’s
statements is a valid factor to consider in assessing witness credibility. Hillen v
Department of the Army, 35 M.S.P.R. 453, 458 (1987). Moreover, there is
evidence that the appellant provided backlog information of a questionable nature
to agency officials before the vacancy announcement was issued. For example ,
the Acting Deputy Chief Security Officer (CSO) stated in a sworn statement that,
in February 2011, the appellant called for a meeting with him and the CSO to
discuss the “backlog” of “approximately 80” human resources cases that needed
an investigation. IAF, Tab 19 at 111, 114. Additionally, the Acting Deputy CSO
and CSO stated in their sworn statements that it was the appellant’s decision to
create the investigator positions. Id. at 91, 114. Finally, the appellant admitted
in her oral reply that, after reviewing a March 7, 2011 report, she emailed the
Acting Deputy CSO and CSO and informed them that she had a “backlog” and
5
Because we do not rely on the March 29, 2011 email in our analysis, we need not
address the appellant’s arguments on review regardin g the effect, if any, of this email
on the agency’s decision to hire a second investigator under the vacancy announcement.
PFR File, Tab 4 at 17-19.
8
needed “help.” IAF, Tab 14 at 39-40. Based on the appellant’s inconsistent
statements regarding whether she provided backlog information to agency
officials (as discussed in the initial decision), coupled with the agency’s evidence
that corroborates the timeline in question, we find that it was more likely than not
that the appellant provided backlog information before the vacancy announcement
was issued.
¶16 We also have considered the appellant’s contention that the administrative
judge suggested that she (the appellant) had an ulterior motive because she waited
until after her friend was hired to tell the selecting official that she did not have a
backlog of cases. PFR File, Tab 4 at 21; ID at 8-9. The record reflects that the
selections for the investigator position were made on April 14, 2011, the
appellant’s friend was presented with the agency’s offer on or around May 12,
2011, the appellant advised the selecting official that she did not have a backlog
on or after May 18, 2011, and her friend’s employment began on June 5, 2011.
IAF, Tab 19 at 113, 126, 129, Tab 23 at 107, Tab 82 at 89. Given these facts,
even if the administrative judge somehow erred in her characterization of the
relevant chronology, her error is not prejudicial to the appellant’s substantive
rights and does not provide a basis for reversing the initial decision. See
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
¶17 On review, the appellant contends that her participation in the interview and
selection panel did not favor her friend because the other two panelists would
have recommended him for the other vacancy, and thus he was not given an
advantage as described in the proposal notice. PFR File, Tab 4 at 25-28. We
disagree with the appellant’s narrow characterization of the relevant language.
Rather, we find that the agency’s allegation in the proposal notice—that the
appellant’s “course of conduct was unfair to the other applicants for the position,
as it provided [her friend] with an advantage not authorized by law, rule, or
regulation”—refers to the entirety of her course of conduct and not merely her
9
decision to sit on the selection panel. 6 IAF, Tab 6 at 44. The proposal notice
stated in the alternative that, even if the appellant did not intend to give her friend
such an advantage, her actions “clearly demonstrate a profound lack of
judgment.” Id. We agree with the agency that the sustained misconduct
evidences poor judgment on the appellant’s part. See, e.g., Drayton v. Equal
Employment Opportunity Commission, 11 M.S.P.R. 43, 44, 46 (1982) (concluding
that the appellant exhibited a “serious lack of judgment” when he twice used a
Government credit card to pay for gasoline for his personal vehicle). We
therefore sustain this allegation.
¶18 We need not address the appellant’s argument that she did not restrict the
number of applicants to be considered or otherwise direct anyone not to issue the
DEU certificate. PFR File, Tab 4 at 22-24. Even if we were to find that the
agency did not prove these allegations, we still would sustain the inappropriate
conduct charge. See, e.g., Burroughs v. Department of the Army, 918 F.2d 170,
172 (Fed. Cir. 1990) (finding that when more than one event or factual
specification supports a single charge, proof of one or more, but not all, of the
supporting specifications is sufficient to sustain the charge ). For the reasons
discussed below, infra ¶¶ 33-43, we further find that the removal penalty is
warranted based on the sustained allegations of the inappropriate conduct charge.
6
The proposal notice alleged that the appellant did not advise “other panel members,
[her] supervisor, or the selection authority of [her] efforts to assist [her friend] with his
résumé or that she had a social relationship with him that went beyond being prior
coworkers.” IAF, Tab 6 at 44. The appellant asserts on review that the decision letter
did not mention withholding such information from the selecting official or her
supervisor, and the administrative judge improperly “added [this allegation] back into
the charge.” PFR File, Tab 4 at 25-26 (citing ID at 17). Regardless of whether we
consider the appellant’s failure to disclose this information to the other panel members,
her supervisor or the selecting official, we would still sustain the inappropriate conduct
charge based on the totality of the misconduct as described herein.
10
The appellant did not prove her affirmative defenses.
¶19 The appellant asserted various affirmative defenses, including harmful
procedural error, a due process violation, discrimination, and reprisal for
whistleblowing disclosures. 7 As set forth below, we have considered her
arguments concerning these defenses, but a different outcome is not warranted.
Due process and harmful procedural error
¶20 On petition for review, the appellant renews her argument that the agency
violated her right to due process by withholding certain favorable evidence during
the removal process, i.e., a December 10, 2012 supplemental report of
investigation that included a document stating that the “Program requested [Merit
Promotion/Noncompetitive] certs[sic] only.” PFR File, Tab 4 at 30-31; IAF,
Tab 25 at 114-15. She argues that had she known of this evidence prior to her
removal, she could have brought it to the deciding offic ial’s attention. PFR File,
Tab 4 at 31.
¶21 We observe that the appellant is not arguing that the deciding official
considered ex parte information in reaching her decision. Cf. Stone v. Federal
Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999) (discussing
the due process implications of a deciding official’s consideration of ex parte
information). Instead, she is arguing that the agency withheld certain exculpatory
information from both her and the deciding official. PFR File, Tab 4 at 30-31. In
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-39, 546-48
(1985), the Supreme Court held that a tenured public employee has a
constitutionally protected property interest in ongoing public employment and
that an agency may not deprive such an employee of his property interest without
providing him due process of law, including the right to advance notice of the
charges against him, an explanation of the agency’s evidence, and an opportunity
7
The appellant does not challenge the administrative judge’s conclusion that she
did not prove her disability discrimination claim. ID at 27. We affirm the
administrative judge’s finding in this regard.
11
to respond. However, courts have consistently declined to extend the holding in
Loudermill to similar fact patterns, and we see no basis to take a different
approach. E.g., Yee v. Bureau of Prisons, 348 F. App’x 1, 2 (5th Cir. 2009);
Ashton v. Whitman, 94 F. App’x 896, 900-02 (3rd Cir. 2004); Lee v. Hutson,
810 F.2d 1030, 1030-34 (11th Cir. 1987); National Labor Relations Board v.
Nueva Engineering, Inc., 761 F.2d 961, 969 (4th Cir. 1985).
¶22 Likewise, for the reasons described in the initial decision, we agree with the
administrative judge that, even if the agency committed a procedural error in this
regard, it was not harmful because the agency would have removed the appellant
in the absence of this error. ID at 29-30; Stephen v. Department of the Air Force,
47 M.S.P.R. 672, 681, 685 (1991).
Reprisal for whistleblowing disclosures 8
¶23 In the initial decision, the administrative judge determined that the
appellant made protected whistleblowing disclosures that were a contributing
factor in the agency’s decision to remove her. ID at 22-24. 9 The administrative
judge determined, however, that the agency proved by clear and convincing
evidence that it would have removed her in the absence of her whistleblowing
disclosures. ID at 24-25. On review, the appellant briefly challenges the
administrative judge’s analysis of the clear and convincing standard. PFR File,
Tab 4 at 37.
¶24 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
8
The administrative judge appeared to analyze this claim without r eferencing the
Whistleblower Protection Enhancement Act of 2012 (WPEA). Pub. L. No. 112-199,
126 Stat. 1465. However, the appellant’s removal occurred after the December 27,
2012 effective date of the WPEA. WPEA, § 202. Although not raised by the appellant
on review, we have considered the WPEA amendments as they pertain to this case, but
they do not warrant a different outcome.
9
Because neither party challenges the administrative judge’s determination that the
appellant satisfied her prima facie burden, ID at 22-24, we affirm it herein.
12
whistleblowing disclosures or protected activity, 10 the Board will typically
consider the strength of the agency’s evidence in support of its action, the
existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision, and a ny evidence that the agency
takes similar actions against employees who are not whistleblowers or who did
not engage in protected activity but who are otherwise similarly situated. Soto v.
Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 11
¶25 The appellant only appears to challenge the administrative judge’s
evaluation of the first Carr factor involving the strength of the agency’s evidence.
PFR File, Tab 4 at 37; ID at 24. For example, the appellant states that some of
the alleged misconduct was not relied upon by the agency (such as the allegation
that she provided misleading backlog information in late March 2011) or did not
occur (such as the allegation that she instructed an agency official not to issue the
DEU certificate, persuaded the selecting official to fill a second investigator
position, and convinced the other members of the interview panel to recommend
her friend for the second position). PFR File, Tab 4 at 37. The documentary
evidence supports most of the agency’s allegations in the inappropriate conduct
charge. Moreover, the appellant does not deny that she sat on the interview and
selection panel for the investigator position, which we find to be the most
egregious misconduct under the circumstances. Because we have sustained most,
10
Clear and convincing evidence “is that measure or degree of proof that produces in
the mind of the trier of fact a firm belief as to the allegations sought to be established.”
5 C.F.R. § 1209.4(e).
11
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
13
though not all, of the allegations in the inappropriate conduct charge and the
charge itself, we conclude that the agency’s evidence is strong.
¶26 We modify the initial decision to supplement the administrative judge’s
analysis of the remaining factors. Consistent with guidance from the Federal
Circuit, we have considered all of the pertinent evidence, including the evidence
that detracts from the conclusion that the agency met its burden. See Soto,
2022 MSPB 6, ¶ 11; see also Whitmore v. Department of Labor, 680 F.3d 1353,
1368 (Fed. Cir. 2012). The administrative judge noted in the init ial decision that
the appellant, who knew of the information contained in her disclosures for some
time, did not make her disclosures until after the agency initiated an investigation
into her alleged misconduct. ID at 25. The administrative judge also determined
that there was “no particular motive” on the part of th e proposing and deciding
officials to retaliate against the appellant for her whistleblowing disclosures. ID
at 24-25. Indeed, it does not appear that the appellant’s disclosures directly
implicated the proposing or deciding officials; we recognize, howe ver, that those
responsible for the agency’s performance overall may well be motivated to
retaliate even if they are not directly implicated by the disclosures as the criticism
reflects on them in their capacities as managers and employees. Wilson v.
Department of Veterans Affairs, 2022 MSPB 7, ¶ 65; Smith v. Department of the
Army, 2022 MSPB 4, ¶¶ 28-29. Thus, we modify the initial decision to find that
this factor may weigh slightly in the appellant’s favor.
¶27 We also have considered whether there is any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. The deciding official stated in her penalty factors
worksheet that the penalty is consistent with those imposed upon other employees
for the same or similar offenses. IAF, Tab 8 at 12. However, the agency has not
clearly identified any evidence to support this assertion. The Federal Circuit has
held that if there is no comparator evidence, Carr factor 3 cannot weigh in favor
of the Government. Soto, 2022 MSPB 6, ¶ 18; see Smith v. General Services
14
Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental
Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018). Thus, this element
cannot weigh in the agency’s favor.
¶28 Based on our review of the evidence, we find that the Carr factor 1
(namely, the sustained misconduct coupled with the appellant’s high rank and
position within the agency) outweighs the other two Carr factors. Accordingly,
we are left with a firm belief that the agency would have removed her absent her
whistleblowing disclosures. See, e.g., Carr, 185 F.3d at 1326 (stating that the
whistleblower protection statutes are not meant to protect employees from their
own misconduct).
Race and sex discrimination
¶29 In the initial decision, the administrative judge applied the standard for
analyzing Title VII claims set forth in Savage v. Department of the Army,
122 M.S.P.R. 612, ¶ 51 (2015), and concluded that the appellant did not prove
that the removal action was motivated by race or sex. ID at 25-26. On review,
the appellant asserts that the administrative judge erred by applying Savage
instead of applying the analytical framework identified in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). PFR File, Tab 4 at 35-36. She also
asserts that the agency’s allegations were a pretext for discrimination because t he
agency presented no credible evidence that she provided false workload
information to secure the vacancy announcement in question, ordered a
subordinate not to prepare the other certificate, or biased the interview panel in
her friend’s favor. Id. at 36.
¶30 At the time that the administrative judge issued the initial decision in this
case, our case law provided that McDonnell Douglas was inapplicable to Board
proceedings. Savage, 122 M.S.P.R. 612, ¶ 46. However, while this case was
pending on petition for review, the Board overruled Savage in that regard and
held that the McDonnell Douglas framework is one of several methods by which
an appellant may prove a claim of disparate treatment discrimination in a Board
15
appeal. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-24.
Nevertheless, for the following reasons, we find that application of the
McDonnell Douglas does not change the outcome of the instant appeal.
¶31 In McDonnell Douglas, 411 U.S. at 802-04, the U.S. Supreme Court held
that to establish a claim of prohibited employment discrimination, the employee
first must establish a prima facie case; the burden of going forward then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for its acti on; and,
finally, the employee must show that the agency’s stated reason is merely a
pretext for prohibited discrimination. Because the agency in this case has already
proffered a nondiscriminatory reason for its action, we proceed to the ultimate
question of whether the appellant has proven her claim of discrimination , i.e.,
whether the agency’s reasons for its action were pretextual. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). A
complainant can show pretext in two ways, “either [1] directly by persuading the
court that a discriminatory reason more likely motivated the employer or
[2] indirectly by showing that the employer’s proffered explanation is unworthy
of credence.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
256 (1981).
¶32 In this case, the reasons that the agency proffered for its removal action are
clear, straightforward, and largely supported by the evidence of record. Although
the agency failed to prove the lack of candor charge and some specification s of
the inappropriate conduct charge, on balance, we find little reason to view the
removal action as a whole as suspect. Nor has the appellant presented sufficient
evidence to raise an inference of discrimination. She identified thirteen
non-African American employees whom the agency investigated for various
infractions, but whom the agency treated differently during their investigations
by, for example, not reassigning them during the pendency of the investigation.
IAF, Tab 82 at 33-36. However, she has not established that any of these
individuals are proper comparators for purposes of a Title VII disparate treatment
16
analysis because there is no evidence that any of these individuals reported to the
same supervisor, was subjected to the same standards, or engaged in similar
misconduct. See Hooper v. Department of the Interior, 120 M.S.P.R. 658, ¶ 6
(2014); Spahn v. Department of Justice, 93 M.S.P.R. 195, ¶ 13 (2003).
Considering the evidence as a whole, we find that the agency’s removal action
was not discriminatory, and we affirm the administrative judge’s conclusion that
the appellant did not prove her affirmative defense. 12 See Michal G. v.
Department of Veterans Affairs, EEOC Appeal No. 2021001945, 2022 WL
2701942, *4 (June 30, 2022).
We vacate the administrative judge’s penalty analysis and conclude that removal
was a reasonable penalty for the sustained misconduct.
¶33 In the initial decision, the administrative judge cited Suarez v. Department
of Housing and Urban Development, 96 M.S.P.R. 213, ¶ 47 (2004), aff’d, 125 F.
App’x 1010 (Fed. Cir. 2005), for the standard of review for evaluating the
penalty. Although the appellant did not specifically challenge the administrative
judge’s applying this standard on review, we find that it was improper. In Suarez,
96 M.S.P.R. 213, ¶ 47, the Board sustained two of four specifications of the first
charge, the first charge itself, and the second charge. The Board noted that when
all of the agency’s charges are sustained, but not all of the underlying
12
In the initial decision, the administrative judge noted that the appellant argued that
her removal was motivated by reprisal for equal employment opportunity activity, but
she did not preserve the argument in response to the affirmative defenses order, did not
pursue it in her prehearing submission, and did not allege facts in her closing argument
to support such a claim. ID at 26 & n.14. The administrative judge therefore concluded
that the appellant did not meet her burden of proof concerning this claim. ID at 26. On
review, the appellant refers to claims of “race discrimination and reprisal” and “race
and sex discrimination and reprisal,” PFR File, Tab 4 at 35, but she does not explain or
articulate her reprisal claim or how the administrative judge’s conclusion was
erroneous. 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. Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92 (1992).
Because the appellant’s petition for review does not contain such specificity, we need
not address this issue further.
17
specifications are sustained, the agency’s penalty determination is entitled to
deference and should be reviewed to determine whether it is within the
parameters of reasonableness. Id. By contrast, in this matter, the administrative
judge did not sustain the lack of candor charge. Because the administrative judge
did not sustain all of the charges, her reliance on the Suarez standard was
improper, and we vacate the administrative judge’s penalty analysis.
¶34 Instead, we find it appropriate to rely on the standard identified in Tartaglia
v. Department of Veterans Affairs, 858 F.3d 1405, 1407-08 (Fed. Cir. 2017).
There, the Federal Circuit reviewed the Board’s penalty determination in a case in
which it had sustained only one of the specifications of one of the charges against
Mr. Tartaglia. Relying on its earlier decision in Lachance v. Devall, 178 F.3d
1246, 1260 (Fed. Cir. 1999), the court in Tartaglia stated that, when the Board
sustains fewer than all of the agency’s charges, it may mitigate the agency’s
penalty to the maximum reasonable penalty so long as the agency has not
indicated in either its final decision or in proceedings before the Board that it
desires that a lesser penalty be imposed on fewer charges. Tartaglia, 858 F.3d
at 1408. The court noted that the agency did not indicate that it desired that a
lesser penalty be imposed based on the single sustained specification and charge,
and the Board therefore had to determine the maximum reasonable penalty to be
imposed in the first instance. Due to an error committed by the Board in its
penalty analysis, the court remanded the appeal for the Board to determine a
penalty less than removal. Id. at 1408-10.
¶35 We have reviewed the decision letter, the deciding official’s penalty factors
worksheet, and her declaration, which memorialized her evaluation of the relevant
penalty factors. IAF, Tab 6 at 39-42, Tab 8 at 10-14, Tab 79 at 303-12. The
deciding official in this matter stated that she sustained the removal based on the
most serious charge sustained, that is, the inappropriate conduct charge . IAF,
Tab 6 at 40. We also have considered the relevant penalty factors under Douglas
v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), including, but not
18
limited to, the nature and seriousness of the offense and its relation to the
appellant’s duties, position, and responsibilities, the appellant’s past disciplinary
record and work record, the clarity with which the appellant was on notice of any
rules that were violated in committing the offense, the potential for the
appellant’s rehabilitation, and mitigating circumstances. Based on our review of
these factors, we find that removal is a reasonable penalty for the sustained
misconduct.
¶36 We have considered the appellant’s allegations on review regarding the
agency’s improper evaluation of certain Douglas factors, including her past
disciplinary record, the clarity with which she was on notice of any rules that
were violated, the supervisor’s confidence that she can perform at a satisfactory
level, her potential for rehabilitation, and the adequacy of alternative sanctions .
PFR File, Tab 4 at 31-35. However, these arguments do not persuade us that a
different penalty is warranted.
¶37 Regarding her past disciplinary record, the appellant contends that the
agency treated her 28 years of “discipline-free service” as a neutral, instead of as
a mitigating, factor. Id. at 32. It is true that the deciding official indicated that
the appellant’s lack of disciplinary history was a neutral factor, but she also noted
that her 28 years of Federal service was a mitigating factor. IAF, Tab 8 at 11,
Tab 79 at 308. Even if we considered the appellant’s length of service and lack
of disciplinary history as mitigating factors, such factors would not outweigh the
very serious allegations that we sustained concerning the inappropriate conduct
charge. See Brough v Department of Commerce, 119 M.S.P.R. 118, ¶ 11 (2013)
(stating that the nature and seriousness of the offense and its relationship to the
employee’s duties and responsibilities is the most important Douglas factor in
determining the appropriate penalty).
¶38 Regarding the clarity with which she was on notice of any rules that were
violated, the appellant criticizes the deciding official’s statement that
“[w]ithholding information during an investigation is a serious offense and a
19
member of the SES is held to a higher standard.” PFR File, Tab 4 at 34; IAF,
Tab 8 at 13. 13 We do not read this excerpted language in isolation. Rather,
leading up to the quoted language, the deciding official stated that because the
appellant was a member of the SES, she should be aware of the ethical standards
of her position. IAF, Tab 8 at 13. Additionally, the deciding official noted that,
as the CCHCO, the appellant guided hiring processes and held a position of
expertise in the field of Federal human resources; thus, she was on clear notice of
the rules that were violated. Id. Given the nature of the appellant’s position, we
discern no error with the deciding official’s analysis of this penalty factor.
¶39 The appellant also challenges the deciding official’s decision to treat her
potential for rehabilitation as a neutral factor based on the fact that she “has taken
no responsibility for her actions and has expressed no remo rse.” PFR File, Tab 4
at 34-35; IAF, Tab 8 at 13. This argument is not persuasive. Indeed, the
appellant has not taken responsibility for her actions, and she does not seem to
appreciate the gravity of her misconduct, which is made more egregious by her
SES status and her CCHCO position. We therefore find no error with the
deciding official’s conclusion that the potential for rehabilitation was a neutral
factor. See, e.g., Dolezal v. Department of the Army, 58 M.S.P.R. 64, 66-67, 71
(1993) (holding that the appellant, who was removed on two misconduct charges,
exhibited little, if any, potential for rehabilitation and did not appear to
understand that he was held to a higher standard of conduct because of his SES
status and because his position made him the Training and Doctrine Command’s
13
The appellant appears to assert that the offense of withholding information during an
investigation “was never mentioned” in this case. PFR File, Tab 4 at 31. However, we
believe that the deciding official’s statement is a reference to the lack of candor charge.
IAF, Tab 6 at 40 (“[I]t is clear you did withhold information from investigators
regarding your level of involvement in [your friend’s] hiring process.”). Because we
do not sustain the lack of candor charge, we do not consider the deciding official’s
statement in this regard in our penalty analysis.
20
highest-ranking personnel policy maker), aff’d, 22 F.3d 1104 (Fed. Cir. 1994)
(Table).
¶40 The appellant further asserts that the penalty was not consistent with those
imposed upon other employees for the same or similar offenses, and she identifies
the Acting Deputy CSO and the deciding official as “more guilty” than she was
because the Acting Deputy CSO certified that the two positions were necessary ,
and the “penalty decision was based on a totally unrelated offense,” respectively.
PFR File, Tab 4 at 33-34. We disagree. As we clarified in Singh v. U.S. Postal
Service, 2022 MSPB 15, ¶¶ 10, 13-14, in assessing a claim of disparate penalty,
such as the appellant’s, the relevant inquiry is whether the a gency knowingly and
unjustifiably treated employees who engaged in the same or similar offense
differently. There is no evidence that either the Acting Deputy CSO or the
deciding official was charged with comparable misconduct. Nor has the appellant
alleged that either agency official engaged in the breadth or scope of misconduct
that we have sustained against her in this matter.
¶41 Finally, the appellant asserts that, after the agency initiated charges against
her, she was rated as “Exceeded Expectations” in her SES performance appraisal,
was given a nearly $8,000 performance award, and was deployed for a
high-profile assignment. Id. at 33; IAF, Tab 82 at 180-204, 206. In some cases,
issues of performance can fairly be separated from issues of misconduct, see
Price v. Veterans Administration, 13 M.S.P.R. 107, 110 (1982), but in others they
cannot, see Valles v. Department of State, 17 F.4th 149, 151-52 (Fed. Cir. 2022).
Considering the appellant’s position as CCHCO and the nature of the charged
misconduct, we agree with her that there appears to be some tension between the
performance evaluation and the removal action in this case. For instance, the
appellant was rated at the top of the “Achieved Expectations” level for the core
competency of “Principled – adheres to the highest ethical standards of public
service and promotes a culture of integrity within DHS.” IAF, Tab 82 at 182.
Nevertheless, the appellant’s argument about her post-proposal evaluation, award,
21
and assignment goes not to the charge itself but to her supervisor’s trust and
confidence in her. PFR File, Tab 4 at 33. Specifically, she argues that the
deciding official’s loss of trust and confidence is irrelevant because the decid ing
official was not in her chain of command. Id. The Board has held, however, that
the penalty judgment belongs to the agency, not to an appellant ’s supervisor, and
that, in the absence of an agency’s failure to consider the relevant Douglas factors
adequately, a supervisor’s opinions are insufficient to overcome the agency’s
judgment concerning the appropriateness of the agency-imposed penalty. Batara
v. Department of the Navy, 123 M.S.P.R. 278, ¶ 7 (2016); see Gebhardt v.
Department of the Air Force, 99 M.S.P.R. 49, ¶¶ 19-21 (2009). Therefore,
notwithstanding the performance evaluation and other indications that the
appellant’s immediate supervisor maintained trust and confidence in her, we find
a legitimate basis for the deciding official’s loss of trust and confidence, and we
find that she properly considered this to be an aggravating factor. IAF, Tab 6
at 40. According to the vacancy announcement for the CCHCO position, the
appellant “has full authority and responsibility for formulating and implementing
agency-wide personnel policies and programs,” she serves as the agency’s
“authoritative expert on all issues pertaining to human capital,” and she
“[p]rovides leadership and direction in preserving the integrity of merit
principles.” IAF, Tab 78 at 107-08. Her misconduct was antithetical to the very
purpose of her CCHCO position, and this fact supports a significant penalty. See,
e.g., Batts v. Department of the Interior, 102 M.S.P.R. 27, ¶¶ 2, 13 (2006)
(finding that a removal penalty was appropriate when the appellant, an
Alternative Dispute Resolution Coordinator and Equal Employment Opportunity
Specialist, was charged with unwelcome kissing and hugging of a female
coworker); Zazueta v. Department of Justice, 94 M.S.P.R. 493, ¶¶ 1-2, 8 (2003)
(upholding the removal of a Border Patrol Agent, who had received
cross-designation to enforce Federal drug laws, based on a positive test for illegal
22
drug use), aff’d, 104 F. App’x 166 (Fed. Cir. 2004). Accordingly, we conclude
that the removal penalty is reasonable.
¶42 We have considered the appellant’s remaining arguments on review, but we
conclude that a different outcome is not warranted.
NOTICE OF APPEAL RIGHTS 14
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(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
14
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.
23
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 ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
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
24
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 resp ective
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 Employm ent
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
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
25
(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. 15 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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.
15
The original statutory provision that provided for judicial revie w 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 re view 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.
26
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.