Timothy Joel v. Department of Justice ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY M. JOEL, DOCKET NUMBER
Appellant, SF-0752-16-0058-I-1
v.
DEPARTMENT OF JUSTICE, DATE: February 1, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Richard W. Stevens, Esquire, Washington, D.C., for the appellant.
Chief Employment Law, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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. Except as expressly MODIFIED by
this Final Order to apply under Charges 2 and 4 the correct legal standard for a
lack of candor charge, and to supplement the administrative judge ’s analysis of
the appellant’s retaliation and race discrimination claims, we AFFIRM the initial
decision.
BACKGROUND
¶2 The appellant, a preference-eligible veteran, was employed as a GS-13
Special Agent with the agency’s Federal Bureau of Investigation (FBI). Initial
Appeal File (IAF), Tab 1 at 2. On June 18, 2015, the Unit Chief of Adjudication
Unit I of the Office of Professional Responsibility (OPR) proposed the
appellant’s removal following an agency Office of Inspector General (OIG)
administrative inquiry into the appellant’s alleged conduct towards Y.K., a
Korean national the appellant had met through his work on alien smuggling
matters with the FBI and whom he aided in obtaining parole to remain in the
United States. IAF, Tab 14, Subtab 4e. The proposed removal was based on the
following four charges: (1) failure to report—administrative; (2) lack of candor
not under oath; (3) unprofessional conduct—off duty; and (4) lack of candor—
under oath. Id. at 3-5. On September 24, 2015, the OPR Assistant Director
issued a decision sustaining the proposed action and immediately removing the
appellant from Federal service. Id., Subtab 4a.
¶3 The appellant timely filed a Board appeal challenging the agency’s removal
action. IAF, Tab 1. In addition, he raised the following affirmative defenses:
discrimination based on race, national origin, ethnicity, sex, and marital status;
retaliation for prior protected equal employment opportunity (EEO) activity; due
process violation; and harmful procedural error. IAF, Tabs 1, 85. Following a
hearing, the administrative judge issued an initial decision affirming the agency’s
action. IAF, Tab 90, Initial Decision (ID). The administrative judge found that,
because the appellant is a preference-eligible veteran, the Board has jurisdiction
over the appeal. ID at 1. The administrative judge found that the agency proved
its four charges by a preponderance of the evidence and therefore he sustained the
agency’s charges. ID at 3-34. Upon considering the appellant’s affirmative
defenses, the administrative judge found that the appellant failed to prove that the
agency violated his constitutional due process rights or committed harmful
procedural error. ID at 34-39. In addition, the administrative judge determined
that the appellant failed to establish his race, national origin, ethnicity, sex, EEO
retaliation, and marital status discrimination claims. ID at 39-46. Finally, the
administrative judge found that the agency established the nexus requirement and
that the penalty of removal was reasonable under the circumstances. ID at 47-50.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. He raises the following arguments on review: (1) the administrative
judge erred in sustaining the agency’s charges; (2) the administrative judge
improperly denied his race discrimination and retaliation affirmative defenses; 2
(3) the penalty of removal is excessive; and (4) the administrative judge abused
his discretion in denying his motion for a subpoena. Id. The agency has filed a
response to the appellant’s petition, and the appellant has filed a reply to the
agency’s response. PFR File, Tabs 7-8.
2
Because the appellant does not contest his remaining affirmative defenses, we do not
consider them.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly sustained the agency’s charges.
Charge 1: Failure to report—administrative
¶5 In support of this charge, the agency alleged that all FBI employees are
required to submit a Roommate Form when they live with a roommate. IAF, Tab
14, Subtab 4e at 4. The agency stated that, despite having lived with Y.K. for
several months at a time on various occasions, the appellant had failed to file the
required form. Id. The notice of proposed removal stated that the appellant’s
actions violated FBI Offense Code 5.7, which prohibits employees from failing to
inform appropriate FBI officials “about an administrative matter which the
employee knew, or should have known, was required by FBI or [Department of
Justice] regulation or policy to be reported.” Id. at 3-4.
¶6 Citing to Colston v. Department of the Army, 10 M.S.P.R. 158, 160 (1982),
the appellant contends that the charge should not be sustained because the agency
did not submit the text of the policy requiring the reporting of roommates into the
record below. PFR File, Tab 3 at 13. Furthermore, he asserts that the way the
regulation was paraphrased by the agency in the decision letter is unintelligible
and ambiguous. Id. at 13-14. He also contends that his delay in filing the
roommate form was due to his misunderstanding of the policy. Id. at 14. In
particular, he asserts that he waited to file the form after he had “been staying
some nights with Y.K.” because he understood a roommate situati on to be
long-term. Id. at 14-15. He further argues that the agency improperly charged
him with never filing a roommate form, and that the agency’s charge should fail
because the agency did not provide evidence of 30 days of consecutive
cohabitation. Id. at 14-15.
¶7 The appellant’s arguments do not provide a basis for disturbing the
administrative judge’s finding that the agency proved its charge. Unlike in
Colston, where the agency did not submit evidence of the specific procedures that
the appellant in that case was charged with violating, the agency in this case
presented sufficient evidence of its reporting policy to meet its burden of proving
the charge. 3 Specifically, in the decision letter, the OPR Assistant Director noted
that the “Cohabitant-Roommate Policy” requires that “anyone who has a
roommate or cohabitant that the employee is sharing living quarters with for
30 consecutive days or more must report at least 60 days in advance .” IAF,
Tab 14, Subtab 4a at 5.
¶8 Moreover, we agree with the administrative judge’s finding that the
appellant failed to abide by the agency’s roommate reporting policy and that
accordingly, he violated FBI Offense Code 5.7. Following a careful review of the
testimonial and documentary evidence, the administrative judge found that the
agency established by preponderant evidence that the appellant cohabitated or
lived with Y.K. for the periods between July 2012 and October 2012, and
February 2013 and March 2013. ID at 6-8. The administrative judge found that
the appellant did not file a “roommate report” with the agency until
October 2012, several months after first moving in with Y.K. in July 2 012. ID
at 7-9. The administrative judge considered the appellant ’s argument that he did
not live with Y.K. consecutively during this period and found that, while the
3
As previously noted, the appellant asserts that the way the regulation was paraphrased
by the agency in the decision letter is unintelligible and ambiguous . PFR File, Tab 3
at 13-14. To the extent the appellant is alleging that the agency violated his
constitutional due process rights by not providing him with a copy of the agency ’s
reporting policy on roommates with the notice of proposed removal, any such argument
lacks merit. Fundamental due process requires that notice of char ges against an
employee be sufficiently detailed to provide a meaningful opportunity to be heard.
Mason v. Department of the Navy, 70 M.S.P.R. 584, 586 (1996). As set forth above, the
notice of proposed removal clearly notified the appellant that the agency was charging
him with violating its roommate reporting policy. In addition, the appellant provided a
written response in which he defended himself against the charge and alleged that he
had, in fact, filed a roommate report. IAF, Tab 14, Subtab 4d at 2 ; see Yinat v.
Department of the Army, 101 M.S.P.R. 328, 333 (2005) (determining that, when an
appellant comes forward and refutes a charge made against him, the Board cannot find
that he was not given notice of the charge). Thus, the appellant has not shown that the
agency violated his constitutional due process rights by failing to provide hi m with a
copy of its roommate reporting policy.
appellant may have left Y.K.’s apartment at least one night per week, his
testimony established that he lived in Y.K.’s apartment throughout these periods
while paying her rent. ID at 9.
¶9 The appellant’s alleged misunderstanding of the meaning of “roommate”
does not provide grounds for disturbing the administrative judge ’s decision to
sustain the charge. The appellant does not allege that he was not aware of the
agency’s roommate reporting policy and we agree with the administrative judge’s
well-reasoned finding that, as a Special Agent with the FBI, the appellant knew or
should have known that he was required to report that he was living with Y.K. ID
at 10; see Micali v. Department of the Treasury, 56 M.S.P.R. 127, 131 (1992)
(sustaining the appellant’s removal based on a charge of failure to report his
spouse’s income on his Federal tax returns when the appellant had knowledge of
the relevant reporting requirement), aff’d, 11 F.3d 1070 (Fed. Cir. 1993) (Table).
¶10 The appellant is correct that the agency stated in the notice of proposed
removal that he did not file a Roommate Form. IAF, Tab 14, Subtab 4e at 4. As
previously noted, the administrative judge found that the appellant did file such a
form in October 2012. ID at 8. However, an agency need only prove the essence
of its charge and need not prove every factual specification. Hicks v. Department
of the Treasury, 62 M.S.P.R. 71, 74 (1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995)
(Table). We find that the agency has established the essence of its charge here.
Based on the foregoing, we find that the administrative judge correctly sustained
Charge 1.
Charge 2: Lack of candor not under oath
¶11 In support of charge 2, the agency provided the following narrative:
[y]ou knowingly provided false information when you told a
[Department of Homeland Security (DHS)] agent that you did not
know where Y.K. was or where she was living. You knew where she
lived, and in fact, she had spent the night at your apartment when
you received the call. You also failed to be fully forthright when
you purposely provided an old phone number for Y.K., and
concealed the material information that you knew her new number.
IAF, Tab 14, Subtab 4e at 4. The agency stated that the appellant ’s actions
violated FBI Offense Code 2.5, which prohibits an employee from “[k]nowingly
providing false information when making a verbal or written statement, not under
oath . . . when the employee is questioned about his conduct or the conduct of
another person.” Id.¶12 In Fargnoli v. Department of Commerce, 123 M.S.P.R. 330 (2016), the
Board clarified the correct legal standard for a lack of candor charge. Relying on
Federal Circuit and Board precedent, the Board held that lack of candor requires
proof of the following elements: (1) that the employee gave incorrect or
incomplete information; and (2) that he did so knowingly. Id., ¶ 17. The
administrative judge did not apply Fargnoli in assessing this charge, and he stated
that the allegation in the specification that the appellant knowingly provided false
information appears to reflect the elements of a charge other than a lack of c andor
charge. ID at 11. We therefore modify the initial decision to reflect the proper
legal standard under Fargnoli for analyzing a lack of candor charge. However,
the administrative judge nonetheless made findings regarding the requisite
elements of proof. He found that the language of FBI Offense Code 2.5, which
was cited within the charge, prohibited employees from knowingly providing
false information. Id. He then went on to make comprehensive findings and
credibility determinations regarding the issue of whether the appellant knowingly
provided incomplete information. ID at 13-20. Thus, because the administrative
judge made comprehensive credibility determinations and findings regarding this
issue, his failure to rely on Fargnoli when assessing the agency’s charge does not
provide a basis for remanding the initial decision. Cf. Fargnoli, 123 M.S.P.R.
330, ¶ 18 (remanding for further analysis on the lack of candor charge when the
administrative judge made no findings as to whether the appellant knowingly
gave incorrect or incomplete information).
¶13 The appellant contends on review that the agency’s charge should not be
sustained because the DHS agent questioned him about what he knew, whereas
the agency charged him under FBI Offense Code 2.5 with providing incorrect
information regarding his and Y.K.’s conduct. PFR File, Tab 3 at 16-25. The
appellant further asserts that FBI Offense Code 2.5 requires that he know that the
individual asking him questions is a DHS agent, but that he did not. Id. at 25-26.
¶14 The administrative judge considered these arguments below, and found
them to be unavailing. He noted that the DHS agent was attempting to serve a
subpoena on Y.K., and that she called the appellant to seek information about the
whereabouts of Y.K. from the appellant because he had aided in her obtaining
parole. ID at 12-13. Because the DHS caller sought information about the
movement of Y.K. from the appellant, the DHS agent’s questions necessarily
sought information about the conduct of both Y.K. and the appellant. Id. We
agree with this finding. While the DHS agent may have sought information
regarding what the appellant knew about Y.K.’s conduct, her questions related to
the conduct of Y.K. and the appellant all the same; the appellant ’s attempts to
distinguish knowledge from conduct in an effort to render FBI Offense Code 2.5
inapplicable to the charge are frivolous.
¶15 Furthermore, by applying the factors set forth in Hillen v. Department of the
Army, 35 M.S.P.R. 453, 458 (1987), 4 the administrative judge found the
appellant’s assertion that he did not know that he was being questioned by a DHS
agent to lack credibility. ID at 15. In particular, the administrative judge found
the appellant’s version of events to be inconsistent with his own testimony and
4
In Hillen, the Board articulated factors to consider in resolving credibility issues. The
Board held that, to resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question, state
which version he believes, and explain in detail why he found the chosen version more
credible, considering such factors as: (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) the witness’s character; (3) any prior
inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453,
458 (1987).
with the record evidence, and to be inherently improbable. ID at 14-15. For
example, the administrative judge cited to the transcript of the telephone call
between the appellant and the DHS agent, during which the DHS agent stated she
was investigating a DHS matter multiple times and during which the appellant
discussed at length his actions to obtain parole for Y.K. and his living
arrangement with her. ID at 13-14; IAF, Tab 14, Subtab 4m. The administrative
judge noted that the appellant’s decision to discuss these matters indicated that he
was aware that he was communicating with another Government agent about Y.K.
ID at 14. The Board must defer to an administrative judge’s credibility
determinations when, as here, 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). We find
that the appellant has not proffered sufficiently sound reasons to set aside the
administrative judge’s credibility finding regarding this issue.
¶16 Moreover, the administrative judge found, and the record reflects, that the
appellant did not provide the DHS agent with Y.K. ’s current phone number when
asked. ID at 15; IAF, Tab 14, Subtab 4m. Instead, he stated that he only had an
old phone number for her and that he did not know if it still worked. IAF,
Tab 14, Subtab 4m at 10. The appellant also denied knowing where Y.K. lived.
Id. at 6. The administrative judge found that the appellant knowingly conc ealed
or omitted material information when he told the DHS agent that he did not have
Y.K.’s current phone number because he testified that he had Y.K. ’s new phone
number on his phone. ID at 16-17; Hearing Transcript (HT) at 441 (testimony of
the appellant). Further, citing to the appellant’s testimony that Y.K. had stayed
with him the night before, the administrative judge found that the agency proved
the factual portion of the specification stating that the appellant knew where Y.K.
was living and that Y.K. had spent the night with him. ID at 18; HT at 409
(testimony of the appellant). The administrative judge noted that the appellant
testified that Y.K. was living in a particular apartment complex when not living
with the appellant. ID at 18-19; HT at 409 (testimony of the appellant).
Accordingly, the administrative judge found that the appellant knowingly
concealed false information from the DHS agent regarding where Y.K. lived. ID
at 19.
¶17 We discern no basis for disturbing the administrative judg e’s well-reasoned
and supported findings that the appellant knowingly provided false information to
the DHS agent, thereby violating FBI Offense Code 2.5. The agency, therefore,
established the requisite elements of proof for its lack of candor charge. See
Fargnoli, 123 M.S.P.R. 330, ¶ 17. Based on the foregoing, we find that the
administrative judge properly sustained Charge 2.
Charge 3: Unprofessional conduct—off duty
¶18 The agency provided the following narrative in support of charge 3 :
You were admonished several times by the DHS agent not to
mention the telephone call or the subpoena to Y.K. However, you
immediately returned to your apartment and informed Y.K. of the
call. You then advised her to depart the United States. You
intentionally attempted to interfere with official government action,
both when you told Y.K. about the call and when you told her to
return to her home country. As an FBI agent, your conduct
discredits the FBI and seriously calls into question your judgement
and character.
IAF, Tab 14, Subtab 4e at 4. The agency stated that the appellant ’s actions
violated FBI Offense Code 5.21, which prohibits employees from engaging in
off-duty conduct that dishonors the FBI or calls into question the character of the
employee. Id.¶19 A charge of unprofessional conduct has no specific elements of proof; it is
established by providing that the employee committed the acts alleged in support
of the broad label. See Canada v. Department of Homeland Security,
113 M.S.P.R. 509, ¶ 9 (2010) (noting that a charge of improper conduct has no
specific elements of proof). We agree with the administrative judge’s finding that
the appellant engaged in the charged misconduct. As noted by the administrative
judge, the record reflects that the DHS agent instructed the appellant to not
mention the telephone call or subpoena to Y.K. ID at 21 ; IAF, Tab 14, Subtab 4m
at 21. The appellant testified that, following the call with the DHS agent, he met
with Y.K. to explain to her what a subpoena was. HT at 422 (testimony of the
appellant). Citing to Hillen, the administrative judge found that, to the extent the
appellant was alleging that he did not discuss the subpoena matter with Y.K. as
alleged, but rather, sought to educate her in general about subpoenas, any such
explanation lacked credibility. ID at 23. We discern no basis for disturbing this
credibility determination on review. See Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105-06 (1997) (stating that the Board will defer to the credibility
findings of the administrative judge and will not grant a petition for review based
on a party’s mere disagreement with those findings).
¶20 The appellant contends on review that the charge cannot be sustained
because it requires proof that he disobeyed a direct order—that of the DHS
agent—and that he did not have a duty to obey directives by non-FBI personnel.
PFR File, Tab 3 at 27-29. The appellant argues that the charge cannot be
sustained unless his conduct was wrongful in some way, which it was not because
he had no duty to follow the DHS agent’s instructions. Id. at 29.
¶21 The appellant’s argument does not provide a basis for disturbing the initial
decision. Nothing in law or regulation requires an agency to affix a label to a
charge of misconduct, and an agency may simply describe actions that constitute
misbehavior in narrative form and have its discipline sustained if the efficiency of
the service suffers because of the misconduct. See Canada, 113 M.S.P.R. 509,
¶ 9. Here, the agency charged the appellant not with violating an order or
instruction, but rather with unprofessional conduct. As set forth above, the
agency proved that the appellant engaged in the charged misconduct. Moreover,
by citing to FBI Offense Code 5.21, the agency alleged that the charged
misconduct constituted misbehavior because it dishonored the FBI and called into
question the appellant’s judgment and character. We agree with the
administrative judge’s finding that the agency showed by preponderant evidence
that the sustained portions of the specification violated FBI Offense Code 5.21.
ID at 25. Accordingly, we find that the administrative judge correctly sustained
Charge 3.
Charge 4: Lack of candor—under oath
¶22 The agency provided the following narrative in support of this fourth
charge:
During an interview under oath, you told the OIG you had occasional
contact with Y.K. from 2009 to 2011, but you concealed the full
extent of your contacts with her. Phone and text message records
indicated that from 2009 to 2011, you were in frequent contact with
Y.K., calling her multiple times per week and exchanging numerous
text messages.
You also failed to be fully forthright when you were questioned
about how Y.K. paid her rent and expenses. You ass erted her
parents sent her money, and you also believed she had a boyfriend
who assisted with the expenses. You also stated your only monetary
contribution was half the monthly rent for the apartment you shared.
However, between 2009 and 2013, you provided Y.K. with regular
cash payments from your personal bank account totaling nearly
$20,000. Further, Y.K. told OIG investigators that in
September 2011, she was unable to work because she was sick, so
you had given her some money.
You knowingly provided false information when you told OIG
investigators that you and Y.K. had rented separate apartments after
March 2013. However, the two of you continued to live together for
three to four months.
IAF, Tab 14, Subtab 4e at 5. The agency stated that the app ellant’s misconduct
violated FBI Offense Code 2.6, which prohibits an employee from “[k]nowingly
providing false information in a verbal or written statement made under oath.”
Id.¶23 The deciding official, however, did not sustain all of the charged
misconduct underlying Charge 4 in the proposal notice. IAF, Tab 14, Subtab 4a
at 8 n.5. Rather, she only sustained the second paragraph of the charge stating
that the appellant failed to be fully forthright when questioned about how Y.K.
paid her rent and expenses. Id. at 7-8.
¶24 As set forth above, a lack of candor charge requires proof of the following
elements: (1) that the employee gave incorrect or incomplete information; an d
(2) that he did so knowingly. Fargnoli, 123 M.S.P.R. 330, ¶ 17. As with
Charge 2, the administrative judge did not apply Fargnoli when assessing
whether the agency met its burden of proof under the charge. Therefore, we
modify the initial decision to reflect the correct legal standard under Fargnoli as
to Charge 4. However, as he did for Charge 2, the administrative judge made
comprehensive findings and credibility determinations regarding the elements of
proof that comprise a lack of candor charge in sustaining the charge.
¶25 In particular, following a careful review of the documentary and testimonial
evidence, the administrative judge found that the appellant concealed or omitted
financial information when questioned under oath by the OIG about how Y.K.
paid her rent and expenses. ID at 32. The administrative judge found that, while
the agency failed to adequately explain its calculations regarding its $20,000
total, the appellant already had transferred $29,451 to Y.K. when he was
questioned by the OIG on February 28, 2013. ID at 33 -34. Moreover, the
administrative judge found that the appellant failed to be fully forthright by not
disclosing these monetary amounts to the OIG. ID at 34. In addition, the
administrative judge found that the appellant knowingly concealed financial
information, and that accordingly, the agency established that he violated FBI
Offense Code 2.6. Id.¶26 On review, the appellant appears to argue that the administrative judge
improperly found that he knowingly failed to be forthright. PFR File, Tab 3
at 32-33. He argues that his answers were correct within the context of the
interview, and that he did not understand that the OIG was seeking information on
all the funds he had provided Y.K. Id. at 33.
¶27 In finding that the appellant knowingly failed to be forthright in his answers
to the OIG, the administrative judge considered the appellant ’s assertion that his
answers to the OIG were based on a misunderstanding. ID at 32 -33. Relying on
the factors set forth in Hillen, including demeanor-based evidence, the
administrative judge found the appellant’s version of events to be lacking in
credibility. ID at 33. The appellant has not provided a sound reason for
disturbing these demeanor-based credibility findings on review. See Haebe,
288 F.3d at 1301. Thus, we agree with the administrative judge’s decision to
sustain Charge 4.
The administrative judge properly denied the appellant ’s race discrimination and
retaliation affirmative defenses.
¶28 In analyzing the appellant’s race discrimination and retaliation claims, the
administrative judge identified the legal standards set forth in Savage v.
Department of the Army, 122 M.S.P.R. 612 (2015), overruled in part by Pridgen
v. Office of Management & Budget, 2022 MSPB 31, ¶¶ 23-25. ID at 39-41.
When the administrative judge issued the initial decision, he did not have the
benefit of the Board’s decision in Gardner v. Department of Veterans Affairs,
123 M.S.P.R. 647 (2016), clarified by Pridgen, 2022 MSPB 31, ¶¶ 23-24. In
Gardner, 123 M.S.P.R. 647, ¶ 30, the Board clarified that Savage does not require
administrative judges to separate “direct” from “indirect” evidence.
¶29 Here, as in Gardner, 123 M.S.P.R. 647, ¶ 31, the administrative judge
discussed the distinction between direct and circumstantial evidence, but there is
no allegation that he disregarded any evidence because it was not direct or
circumstantial. Moreover, we find that the administrative judge properly
considered the documentary and testimonial evidence as a whole in determining
that the appellant failed to establish he was discriminated against because of his
Korean heritage or retaliated against for prior protected activity (filing a
complaint with the Ombudsman). Specifically, the administrative judge carefully
considered whether there was relevant comparator evidence and found that the
appellant presented no evidence that individuals outside of his race and/or
individuals who have not contacted the Ombudsman were treated more favorably
by the FBI. ID at 42. In addition, he found that there was nothing to suggest the
existence of suspicious timing, ambiguous statements oral or written, behavior
toward or comments directed at other employees in the protected group, and other
bits and pieces of evidence from which an inference of discriminatory intent
might be drawn, even when considered with the appellant’s unsupported
allegations. ID at 45. Moreover, the administrative judge found there was no
reason to believe the agency’s stated reason for the removal action was pretextual
given, inter alia, that all of the agency’s charges were sustained. ID at 46. The
administrative judge concluded that the appellant failed to establish these
affirmative defenses. Id.¶30 The appellant challenges these findings on review, alleging that the
administrative judge disregarded evidence of temporal proximity. PFR File,
Tab 3 at 37-39. We find the appellant’s argument constitutes mere disagreement
with the administrative judge’s well-supported findings regarding the appellant’s
race discrimination and retaliation claims, and that his allegation does not provide
a basis for disturbing these findings. We therefore affirm the administrative
judge’s conclusion that the appellant failed to prove these affirmative defenses. 5
The appellant failed to show that the administrative judge abused his discretion
by denying the appellant’s motion for a subpoena.
¶31 Administrative judges have broad discretion in regulating discovery, and,
absent a showing that the administrative judge abused his discretion, the Board
will not find reversible error. Vores v. Department of the Army, 109 M.S.P.R.
191, ¶ 14 (2008), aff’d, 324 F. App’x 883 (Fed. Cir. 2009). A party may request a
5
Because we affirm the administrative judge’s finding that the appellant failed to meet
his initial burden to prove that race or retaliation for EEO activity were motivating
factors in the agency’s actions, we need not resolve the issue of whether the appel lant
proved that discrimination or retaliation was a “but-for” cause of the agency’s
decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.
subpoena to obtain the testimony of a witness and the Board has the authority to
issue a subpoena requiring the witness’s attendance. 5 C.F.R. § 1201.81(a). A
subpoena request must “be supported by a showing that the evidence sought is
directly material to the issues involved in the appeal.” 5 C.F.R. § 1201.81(c).
¶32 The appellant contends on review that the administrative judge abused his
discretion by denying his motion to subpoena R.R. for a deposition. PFR File,
Tab 3 at 35-37. He argues that R.R. was involved in the underlying investigation
and in his removal because R.R. sent an email regarding the appellant to the
Human Resources Department (HRD), instead of the Security Division. Id. at 36.
He further contends that R.R.’s testimony was relevant to his race discrimination
claim because he attacked the appellant’s Korean culture. Id. at 35.
¶33 Following a careful review of the evidence, the administrative judge found
that the appellant failed to meet his burden under 5 C.F.R. § 1201.81(c). IAF,
Tab 39 at 3-4. The administrative judge considered the appellant’s argument that
R.R. may have initiated the underlying investigation because he told the appellant
that this case was being referred to HRD instead of to the Security Division. Id.
at 3. The administrative judge further considered R.R.’s proffered testimony as it
referred to the appellant’s affirmative defenses, and found it to not be directly
material. Id. We agree with the administrative judge’s conclusion that the
appellant failed to meet the standard under 5 C.F.R. § 1201.81(c); thus, we find
that the appellant has failed to show that the administrative judge abused his
discretion in denying the motion to subpoena R.R.
The administrative judge correctly found that the agency established the nexus
requirement and that the penalty of removal was reasonable under the
circumstances.
¶34 The nexus requirement, for purposes of determining whether an agency has
shown that its action promotes the efficiency of the service, means there must be
a clear and direct relationship between the articulated grounds for an adverse
action and either the employee’s ability to accomplish his duties satisfactorily or
some other legitimate Government interest. Scheffler v. Department of the Army,
117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). The
Board has found that there is a sufficient nexus between an employee ’s
misconduct and the efficiency of the service when the sustained misconduct
concerned an employee’s lack of candor during an administrative inquiry.
Ludlum v. Department of Justice, 87 M.S.P.R. 56, ¶ 28 (2000), aff’d, 278 F.3d
1280 (Fed. Cir. 2002). Likewise, our reviewing court and the Board have found
that a sufficient nexus exists when certain types of unprofessional off-duty
conduct undermine the necessary trust and confidence in the agency’s missi on.
Brown v. Department of the Navy, 229 F.3d 1356 (Fed. Cir. 2000) (affirming the
Board’s determination that the agency established a nexus be tween the appellant’s
misconduct of having an adulterous affair with the wife of a Marine while he was
deployed overseas, given the appellant’s managerial position in an office
responsible for providing support to Marine families, including families of
Marines deployed overseas; the appellant’s misconduct undermined the necessary
trust and confidence of the agency’s mission, especially given that the wife of a
deployed Marine was a member of a unit that the appellant was directly
responsible for supporting; the court further agreed that removal was warranted
under the circumstances). We therefore find that the agency has met the nexus
requirement here.
¶35 When, as here, 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 Douglas factors and exercised management discretion within
tolerable limits of reasonableness. 6 Portner v. Department of Justice,
119 M.S.P.R. 365, ¶ 10 (2013), overruled on other grounds by Singh v. U.S.
Postal Service, 2022 MSPB 15, ¶ 17. In determining whether the selected penalty
6
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
is reasonable, the Board gives due deference to the agency’s discretion in
exercising its managerial function of maintaining employee discipline and
efficiency. Portner, 119 M.S.P.R. 365, ¶ 10. The Board will modify a penalty
only when it finds that the agency failed to weigh the relevant factors or that the
penalty the agency imposed clearly exceeded the bounds of reasonableness. Id.However, if the deciding official failed to appropriately consider the relevant
factors, the Board need not defer to the agency’s penalty determination. Id.¶36 The appellant contends on review that the penalty of removal is excessive.
PFR File, Tab 3 at 34. He alleges that, contrary to the administrative judge’s
finding, he disclosed that he was sharing a space with Y.K. Id. He also asserts
that the penalty is inconsistent with the agency’s table of penalties. Id.¶37 The appellant’s arguments do not provide a basis for disturbing the
administrative judge’s finding that the deciding official considered all of the
relevant Douglas factors and exercised management discretion within tolerable
limits of reasonableness. In upholding the proposed penalty, the deciding official
considered the nature and seriousness of the misconduct and its relationship to the
appellant’s position as an FBI agent. IAF, Tab 14, Subtab 4a; see Gaines v.
Department of the Air Force, 94 M.S.P.R. 527, ¶ 9 (2003) (holding that in
evaluating a penalty, the Board will consider, first and foremost, the nature and
seriousness of the misconduct and its relationship to the employee ’s duties,
position, and responsibilities). Law enforcement officers, like the appellant, are
held to a higher standard of honesty and integrity. Prather v. Department of
Justice, 117 M.S.P.R. 137, ¶ 36 (2011). The deciding official recognized that the
appellant acknowledged during his oral response that he was at fault for not filing
a roommate report in a timely manner, but determined that, despite the appellant’s
acceptance of responsibility, the fact remains that he continued to act in an
obstructive manner during the OIG investigation. IAF, Tab 14, Subtab 4a at 9
n.6. She further determined that the penalty imposed was consistent with
corresponding agency offense codes. Id. at 8. She also considered mitigating
factors, such as the appellant’s successful ratings, service with the FBI, and the
stress he was under due to separation from family, but found these factors to be
outweighed by the seriousness of the sustained misconduct. HT at 227-29, 234
(testimony of the deciding official). In light of the above, we find that the
penalty of removal is reasonable under the circumstances of this case. See
Kamahele v. Department of Homeland Security, 108 M.S.P.R. 666, ¶¶ 2, 15
(2008) (finding that the removal penalty was reasonable when the appellant
demonstrated lack of candor and inappropriate conduct); Dunn v. Department of
the Air Force, 96 M.S.P.R. 166, ¶¶ 2, 12-18 (2004) (determining that removal was
reasonable when the employee engaged in conduct unbecoming and exhibited a
lack of candor), aff’d, 139 F. App’x 280 (Fed. Cir. 2005).
NOTICE OF APPEAL RIGHTS 7
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 appro priate
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
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.
7
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.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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 d ecision 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
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 8 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).
8
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.
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 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.