Barry Bradford v. Department of the Air Force ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARRY BRADFORD, DOCKET NUMBERS
Appellant, DA-0752-15-0186-I-1
DA-1221-15-0155-W-1
v.
DEPARTMENT OF THE AIR FORCE,
Agency. DATE: February 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sarah L. McKinin, Esquire, and Debra D’ Agostino, Esquire, Washington,
D.C., for the appellant.
James T. Hedgepeth and Charles R. Vaith, Esquire, Joint Base San
Antonio-Randolph, Texas, 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
denied his request for corrective action in his individual right of action (IRA)
appeal and affirmed the agency’s removal action. Generally, we grant petitions
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 erron eous
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. Except as expressly MODIFIED to consider the disparate penalty
analysis set forth in Singh v. U.S. Postal Service, 2022 MSPB 15, we AFFIRM
the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In a May 21, 2014 decision, the agency suspended the appellant for 10 days
for his alleged failure to carry out assigned work in a reasonable period of time,
insubordinate defiance of authority, and refusal to comply with proper orders .
Bradford v. Department of the Air Force, MSPB Docket No. DA-0752-15-0186-
I-1, Initial Appeal File (IAF), Tab 7 at 317-18, 331. On October 20, 2014, the
agency proposed to remove him for refusal to follow orders and conduct
unbecoming a Federal employee arising from his conduct on May 21, 2014, when
his third-level supervisor, Lieutenant Colonel D.L. (D.L.), and another employee,
Master Sargent S.S. (S.S.), attempted to deliver the suspension decision to him.
Id. at 275-76. The proposed removal notice alleged that, on May 21, 2014, the
appellant twice refused D.L.’s instructions to meet with him and twice
disregarded his orders to remain in place, pushing past him and departing the
room they occupied. Id. at 274. The proposal notice alleged that the appellant
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made contact with D.L.’s body the first time he pushed past him to exit the room
and made contact with both D.L.’s and S.S.’s bodies the second time he pushed
past them and left the room. Id. The appellant, through counsel, responded
orally and in writing to the proposed removal. Id. at 18, 25-49. The agency
imposed the removal, effective December 17, 2014. Id. at 18-20.
¶3 On December 23, 2014, the appellant filed an IRA appeal challenging the
10-day suspension. Bradford v. Department of the Air Force, MSPB Docket
No. DA-1221-15-0155-W-1, Initial Appeal File, Tab 1. On January 15, 2015, he
appealed his removal to the Board, raising affirmative defenses of reprisal for
protected whistleblowing disclosures and activity, retaliation for equal
employment opportunity (EEO) activity, and harmful procedural error, and
arguing that the penalty of removal was unreasonable . IAF, Tab 1. The
administrative judge joined the appeals for processing. IAF, Tab 6 at 1.
¶4 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision denying the appellant’s request for corrective action and
affirming the agency’s removal action. IAF, Tab 30, Initial Decision (ID). In
denying the appellant’s request for corrective action, the administrative judge
found that, although the appellant made nonfrivolous allegations sufficient to
establish Board jurisdiction over his IRA claim and established his prima facie
case by preponderant evidence, the agency showed by clear and convincing
evidence that it would have suspended him even absent his whistleblowing
disclosures and activity. ID at 3-5, 13-19. In affirming the removal, the
administrative judge sustained the agency’s two charges, denied the appellant’s
affirmative defenses, found nexus between the charges and the efficiency of the
service, and concluded that the penalty of removal was reasonable. ID at 6-12,
19-30.
¶5 The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition to his petition for review. Petition for
Review (PFR) File, Tabs 3, 5. On review, the appellant argues that the
4
administrative judge erred in denying his affirmative defense of retaliation for
protected EEO activity and in finding the removal penalty reasonable. 2 PFR File,
Tab 3 at 5, 15-28.
The administrative judge correctly found that the penalty of removal was
reasonable for the sustained charges.
¶6 When, as here, all of the agency’s charges have been sustained, the Board
will review an agency-imposed penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion withi n
tolerable limits of reasonableness. Davis v. U.S. Postal Service, 120 M.S.P.R.
457, ¶ 6 (2013) (citing Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306
(1981)). In determining whether the selected penalty is reasonable, the Board
defers to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficiency. Id. The Board recognizes that
its function is not to displace management’s responsibility or to decide what
penalty it would impose, but instead to assure that management judgment has
been properly exercised and that the penalty selected by the agency does not
exceed the maximum limits of reasonableness. Id. Thus, the Board will modify a
penalty only when it finds that the agency failed to weigh the rel evant factors or
that the penalty the agency imposed clearly exceeded the bounds of
reasonableness. Id.¶7 The administrative judge found that the deciding official considered the
relevant factors in imposing the appellant’s removal, including his length of
service, his prior discipline, his favorable performance appraisals, the consistency
of the penalty, and the seriousness of his misconduct . ID at 27. She agreed with
the deciding official’s assessment that the appellant’s conduct —engaging in a
2
The appellant does not challenge the administrative judge’s denial of his request for
corrective action in his IRA appeal. PFR File, Tab 3. He also does not challenge the
administrative judge’s findings that the agency proved both charges underlying the
removal and established nexus, or her determination that he failed to establish his other
affirmative defenses. Id. We discern no reason to disturb these findings.
5
physical altercation with a supervisor, repeatedly failing to follow orders, and
unprofessional conduct—was serious and concluded that the removal penalty was
not unreasonable. ID at 27, 30. The administrative judge considered the
appellant’s argument that the physical contact with D.L. and S.S. was
self-defense, unintentional, and provoked, but found that the appellant failed to
prove these alleged mitigating factors. ID at 27-28. She also considered his
disparate penalties claim but found that he failed to identify a similarly situated
employee who was treated more leniently by the agency. ID at 29.
¶8 On review, the appellant argues that the administrative judge erred in
finding that the penalty was reasonable because D.L. and S.S. also engaged in
conduct unbecoming on May 21, 2014, but were not disciplined. PFR File, Tab 3
at 20-28. To establish disparate penalties, the appellant must show that the
charges and circumstances surrounding the charged beha vior are substantially
similar. Archuleta v. Department of the Air Force, 16 M.S.P.R. 404, 407 (1983).
If an appellant makes such a showing, then the agency must prove a legitimate
reason for the difference in treatment by a preponderance of the evidence before
the penalty can be upheld. Woody v. General Services Administration, 6 M.S.P.R.
486, 488 (1981). The administrative judge relied on the standard as set forth in
Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶¶5-6, 15 (2010), and
Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶¶20, 24 (2012), in finding
that the appellant did not meet his burden of identifying a similarly situated
employee. ID at 29 (citing to cases relying on Lewis and Boucher). Since the
initial decision was issued, the Board has overruled Lewis and subsequent cases
to clarify that, when analyzing a disparate penalty claim, broad similarity between
employees is insufficient to establish that they are appropriate comparators, and
the relevant inquiry is whether the agency knowingly and unjustifiably treated
employees who engaged in the same or similar offenses differently. Singh,
2022 MSPB 15, ¶ 14. We modify the initial decision accordingly.
6
¶9 As noted above, the administrative judge found that the appellant failed to
trigger the agency’s burden of proving a legitimate reason for the difference in
treatment because he failed to identify any similarly situated employee. ID at 29.
The appellant argues on review that D.L. and S.S. are similarly situated
comparators who were treated more favorably by the agency because they
engaged in “similarly unprofessional behavior and/or behavior that could fall into
the category of conduct unbecoming” when, on May 21, 2014, they cornered him
in the orderly room; blocked his exit; made unwelcome physical contact with his
body; engaged him in the bathroom, where he had an expectation of privacy; and
blocked him on the stairs, causing him to “bump” into S.S. PFR File, Tab 3
at 23-24. The appellant further argues that it was unreasonable for D.L. and S.S.
to insist on delivering the suspension notice to him that day in person , rather than
by email or regular mail, and that their actions are “of [an] equal, if not greater,
level of unprofessionalism” than the appellant’s reactions to their “extraordinary
actions.” Id. at 25.
¶10 Even if true, the appellant’s characterization of how the events transpired
on May 21, 2014, would not establish that D.L. or S.S. refused to follow any,
much less multiple, orders, as he did. Furthermore, in sustaining the conduct
unbecoming charge, the administrative judge considered the appellant’s
characterization of the various interactions with D.L. and S.S. on the day in
question—including his contentions that D.L. initiated the physical contact, that
his intentional physical contact was limited to removing D.L.’s hand from his
chest, and that he merely stumbled over D.L.’s legs or feet on the stairway,
causing him to inadvertently come into contact with S.S.—but found these
descriptions unpersuasive. ID at 11-12. In so finding, the administrative judge
determined that the appellant’s testimony regarding these incidents was less
credible than the testimonies of D.L. and S.S., which were consistent with each
other and with contemporaneous statements and corroborated by another
witness’s statement. Id. In light of the hearing testimonies and record evidence,
7
the administrative judge found that the appellant’s physical contact with D.L. was
more forceful than he described and concluded that the appellant pushed D.L. in
the orderly room and pushed S.S. in the stairway. Id.¶11 The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing, and may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the
administrative judge made credibility determinations based on hearing testimony,
and the appellant has failed to provide any reason on revi ew to overturn these
well-reasoned determinations. Rather, he essentially asks us to reweigh the
evidence and to reach a different conclusion than that of the administrative judge
concerning the nature of events on May 21, 2014. We decline to do so. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions on issues
of credibility). Accordingly, given the administrative judge’s finding that the
appellant failed to identify any similarly situated employee under the more lenient
Lewis standard, we find that, regardless of whether the appellant’s claim was
analyzed under the Lewis or Singh standards, the appellant has not met his initial
burden on his disparate penalty claim. We further find that , contrary to the
appellant’s argument on review, the agency’s burden to explain any difference in
treatment has not been triggered. PFR File, Tab 3 at 25.
¶12 The appellant also argues on review that the penalty should be mitigated
because his actions on May 21, 2014, constituted self-defense and because D.L.
and S.S. provoked him. Id. at 25-28. As discussed above, however, the
administrative judge considered the appellant’s alternate characterization of the
events on May 21, 2014, and concluded that the testimonies of D.L. and S.S. were
more credible than the appellant’s testimony. ID at 11-12. She also found no
8
merit to the appellant’s allegations of self-defense or provocation, concluding that
the appellant did not present any evidence suggesting that he was subject to any
attack by D.L. or by S.S. and that, while it is clear that D.L. and S.S. were
persistent in their efforts to meet with him, there was no evidence that they posed
any physical threat to him. ID at 27-28. Thus, she concluded that self-defense
and provocation were not appropriate mitigating factors. ID at 28. The appellant
has failed to provide any basis to disturb these credibility-based findings on
review. See Crosby, 74 M.S.P.R. at 105-06.
The administrative judge correctly denied the appe llant’s affirmative defense of
EEO retaliation in connection with his removal appeal.
¶13 When an appellant asserts an affirmative defense of discrimination or
retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether the
appellant has shown by preponderant evidence that the prohibited consideration
was a motivating factor in the contested personnel action. Savage v. Department
of the Army, 122 M.S.P.R. 612, ¶ 51 (2015),overruled in part by Pridgen v. Office
of Management and Budget, 2022 MSPB 31, ¶¶ 23-25. In determining whether
the appellant has met his initial burden to show a motivating factor, the Board
must consider all of the evidence together as a whole without sorting evidence
into different piles, labeled “direct” or “indirect,” that are evaluated differently.
Sabio v. Department of Veterans Affairs, 124 M.S.P.R. 161, ¶ 36 (2017). The
relevant inquiry here is whether, on the basis of all of the evidence, the appellant
has shown by preponderant evidence that discriminatory animus was a motivating
factor in his removal. See id. Such a showing is sufficient to establish that the
agency violated 42 U.S.C. § 2000e-16, thereby committing a prohibited personnel
practice under 5 U.S.C. § 2302(b)(1). Savage, 122 M.S.P.R. 612, ¶ 51. If the
appellant meets this initial burden, the Board then will inquire wheth er the agency
has shown by preponderant evidence that the action was not based on the
prohibited personnel practice, i.e., that it still would have taken the contested
action in the absence of the discriminatory or retaliatory motive. Id. If the Board
9
finds that the agency has made that showing, its violation of 42 U.S.C.
§ 2000e-16 will not require reversal of the action. Id. 3
¶14 The record reflects that the appellant contacted the EEO office in
April 2014, alleging that D.L. made discriminatory remarks during a meeting
when he suggested that the appellant sign his name with an “X” on the sign-out
log. IAF, Tab 25 at 167-68. During his hearing testimony, D.L. testified that the
EEO office notified him on April 15, 2014, that the appellant believed that his
suggestion that he sign with an “X” was a reference to slavery or a suggestion
that he was illiterate. IAF, Tab 29, Hearing Compact Disc (Mar. 3, 2014)
(testimony of D.L.). He further testified that the EEO investigator told him that
the appellant wanted an apology and that he immediately apologized to him in
order to make amends. Id. The appellant did not file a formal complaint of
discrimination. IAF, Tab 7 at 14.
¶15 In the initial decision, the administrative judge found that the appellant’s
EEO reprisal affirmative defense failed because, although the appellant engaged
in EEO activity and the deciding official was aware of the activity, he did not
show by preponderant evidence that his EEO activity was a motivating factor in
his removal. ID at 21-23. In so finding, she noted that, although the disciplinary
actions, up to and including the appellant’s removal, closely followed his EEO
complaint, they also closely followed his failure to timely complete an assigned
task and his other misconduct. Id. She further found the proposing and deciding
officials to be credible witnesses and credited their testimony that they were not
motivated by retaliatory animus in proposing or imposing the appellant’s
removal. ID at 23. The administrative judge also found that, even if the
appellant established the motivating factor element, the agency proved by
3
Because, as discussed below, supra ¶ 16, the appellant here failed to prove his initial
burden that a prohibited factor played any part in the agency’s decision, we do no t
reach the question of whether discrimination or retaliation was a “but-for” cause of that
decision. See Pridgen, 2022 MSPB 31, ¶¶20-25, 30.
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preponderant evidence that it still would have removed the appellant in the
absence of any retaliatory motive. Id.¶16 The appellant argues on review that the administrative judge improperly
denied his affirmative defense of EEO reprisal because, even if retaliation for his
EEO activity was not the only reason the agency removed him, it was a
motivating factor in the agency’s decision, as evidenced by suspicious timing,
“progressive” discipline beginning after his EEO activity, dissimilar treatment,
and statements by D.L. showing retaliatory intent. PFR File, Tab 3 at 15-20.
¶17 As discussed above, the administrative judge found that, on the basis of all
the record evidence and hearing testimony, the appellant failed to show that
retaliatory animus motivated the agency’s decision to remove him. ID at 21 -23.
The appellant’s arguments on review regarding alleged suspicious timing,
improper “progressive” discipline, dissimilar treatment, and allegedly ret aliatory
statements made by D.L., who was not the proposing or deciding official in the
removal action, provide no basis to disturb the administrative judge’s
determination that the appellant failed to show motivating fa ctor by preponderant
evidence.
NOTICE OF APPEAL RIGHTS 4
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 and
4
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 notic e, the
Board cannot advise which option is most appropriate in any matter.
11
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 appli cable 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 choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
12
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
13
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no ch allenge 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. 5 The court of appeals must receive your petition for
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants 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.