Filed: Jan. 03, 2017
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL LEONARD, DOCKET NUMBER Appellant, CH-0752-14-0301-I-3 v. DEPARTMENT OF VETERANS DATE: January 3, 2017 AFFAIRS, Agency. THIS ORDER IS NONPRECEDENTIAL 1 Justin Randolph, Esquire, Chicago, Illinois, for the appellant. Janet M. Kyte, Esquire, and Robert Vega, Esquire, Hines, Illinois, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL LEONARD, DOCKET NUMBER Appellant, CH-0752-14-0301-I-3 v. DEPARTMENT OF VETERANS DATE: January 3, 2017 AFFAIRS, Agency. THIS ORDER IS NONPRECEDENTIAL 1 Justin Randolph, Esquire, Chicago, Illinois, for the appellant. Janet M. Kyte, Esquire, and Robert Vega, Esquire, Hines, Illinois, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial ..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL LEONARD, DOCKET NUMBER
Appellant, CH-0752-14-0301-I-3
v.
DEPARTMENT OF VETERANS DATE: January 3, 2017
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Justin Randolph, Esquire, Chicago, Illinois, for the appellant.
Janet M. Kyte, Esquire, and Robert Vega, Esquire, Hines, Illinois, for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, AFFIRM the administrative judge’s finding that
the agency proved its charge of failure to follow established police procedures,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the administrative judge’s findings concerning specification 4 of the
failure to perform the duties of the position charge, the reasonableness of the
penalty, and the appellant’s affirmative defense of retaliation, and REMAND the
case to the Board’s regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 Effective March 8, 2013, the agency removed the appellant from his
Criminal Investigator position with the Hines Veterans Administration (VA)
Hospital Police Service based on the charges of lack of candor, failure to properly
perform the duties of his position, failure to follow established police procedures,
and poor judgment as a police officer. Leonard v. Department of Veterans
Affairs, MSPB Docket No. CH-0752-14-0301-I-1, Initial Appeal File (IAF), Tab 8
at 26-28, 62-65. The appellant filed an appeal challenging his removal and
raising an affirmative defense of retaliation for prior equal employment
opportunity (EEO) activity. IAF, Tab 1 at 4; Leonard v. Department of Veterans
Affairs, MSPB Docket No. CH‑0752-14-0301-I-3, Appeal File (I-3 AF), Tab 13
at 7. The appellant also raised, but subsequently withdrew, an affirmative
defense of harmful error. IAF, Tab 1 at 4; I-3 AF, Tab 13 at 7.
¶3 After holding a hearing, the administrative judge issued an initial decision
affirming the agency’s action. I-3 AF, Tab 26, Initial Decision (ID). The
administrative judge did not sustain the agency’s lack of candor charge. ID
at 3‑5. The administrative judge merged the charge of poor judgment as a police
officer into the charges of failure to properly perform the duties of the position
and failure to follow established police procedures. 2 ID at 5 n.2, 16 n.8. She
sustained the failure to properly perform the duties of the position charge based
on one of the four specifications and the failure to follow established police
2
On review, neither party challenges the administrative judge’s decision to merge
the charges.
3
procedures charge based on three of the four specifications. ID at 5-19. Further,
she found that there was a nexus between the sustained charges and the efficiency
of the service and that removal was within the tolerable limits of reasonableness.
ID at 22-23. Finally, she found that the appellant did not prove his affirmative
defense of retaliation for prior EEO activity. ID at 19-21.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has opposed the appellant’s petition. PFR File, Tab 5.
The appellant has filed an untimely reply. 3 PFR File, Tab 6.
ANALYSIS
Remand is necessary for additional findings concerning whether the agency
proved its charge of failure to properly perform the duties of the position.
¶5 The administrative judge did not sustain specifications 1 or 2 of this charge
and the agency withdrew specification 3. ID at 5-9. The administrative judge
sustained specification 4, in which the agency alleged that in October 2012, the
Acting Police Chief, who was the proposing official, discussed with the appellant
his concerns regarding the appellant’s failure to perform independent
investigations as to Reports of Survey 4 of missing agency property, and instructed
him that he must conduct proper investigations, including interviews of relevant
witnesses. IAF, Tab 8 at 63. The agency alleged that the appellant continued to
conduct investigations of missing property without any independent
investigation. Id.
¶6 The administrative judge found that the agency proved that the appellant
failed to conduct independent investigations of missing property on multiple
occasions after being instructed to do so. ID at 11-12. We agree with the
3
We have not considered the appellant’s reply, which was untimely filed on June 13,
2016, more than 10 days after the agency served its response on May 31, 2016, and
which is not accompanied by a motion showing good cause for the untimely filing. PFR
File, Tabs 4-6; see 5 C.F.R. § 1201.114(e)-(g).
4
A Report of Survey is an inventory document that is generated when Government
property is reported as lost or stolen. Hearing Transcript at 42-43, 66, 197-98, 379-80.
4
appellant that this was an error because the agency only offered one example of
his failure to independently investigate, which was an October 2012 Report of
Survey. 5 PFR File, Tab 3 at 13‑14. The administrative judge found that it was
much more likely than not that the appellant conducted more than one
investigation in the period between October 2012 and January 10, 2013, when the
agency proposed his removal. ID at 11-12. In so finding, she relied on the
appellant’s general testimony “regarding the recurring nature and large number of
these property losses and the little time he had to investigate.” ID at 11.
However, beyond the October 2012 Report of Survey, it is not clear from the
record how many Reports of Survey the appellant completed after the
October 2012 conversation or whether he conducted independent investigations in
connection with any such Reports of Survey. Moreover, both the appellant and
his supervisor testified that, at some point prior to the appellant’s removal,
investigations of missing property were reassigned to the police patrol. PFR File,
Tab 3, Hearing Transcript (HT) at 51‑52, 121. Accordingly, we vacate the
administrative judge’s finding that the agency proved that the appellant failed to
conduct independent investigations on multiple occasions after October 2012.
¶7 Additionally, in sustaining specification 4, the administrative judge relied
on the proposing official’s testimony that, during an October 2012 conversation,
he directed the appellant to conduct independent investigations regarding Reports
of Survey, including interviewing witnesses and showing all work leading to and
supporting his findings, but that the appellant failed to change how he conducted
investigations. ID at 10. The administrative judge further cited the proposing
official’s testimony that he spoke to the appellant at the urging of the head of
logistics, who previously had discussed these concerns with the appellant. Id.
5
The initial decision erroneously references this Report of Survey as being dated
December 2012, instead of October 2012. ID at 10; IAF, Tab 9 at 91.
5
The administrative judge also found that the appellant “did not dispute he failed
to follow agency direction to conduct independent investigations.” ID at 11.
¶8 On review, the appellant contends that the administrative judge fa iled to
consider his testimony to the contrary and make proper credibility determinations.
PFR File, Tab 3 at 10. We agree. The record reflects that the appellant disputed
the proposing official’s testimony concerning the substance of their October 2012
conversation. He testified that the proposing official did not mention the need for
him to conduct independent investigations, but rather questioned him about the
Reports of Survey appearing redundant. HT at 119‑20. He further testified that
the proposing official was not “abreast of the system” concerning the way Reports
of Survey were handled and that he explained to the proposing official that, under
the system in place, he sometimes did extensive and sometimes limited
investigations based on information from the Board of Survey. 6 HT at 119-21.
According to the appellant, under the system in place, the agency’s Board of
Survey first looked at the Reports of Survey and then determined whether any
further investigation was needed by the appellant. IA F, Tab 8 at 46-47. The
appellant contends that the proposing official did not direct him to alter this
process. Id.
¶9 The appellant also disputed that the head of logistics previously had talked
to him about how he conducted investigations and testified that he only had
expressed concern that the Reports of Survey be completed more quickly. HT
at 116-17, 138-39. The appellant further asserts that the administrative judge
failed to consider his supervisor’s testimony that, before the arrival of the
6
The role and involvement of the Board of Survey in investigating missing property is
unclear from the record. The parties dispute whether the Board of Survey investigated
missing property, the scope of any such investigation, and whether the appellant was
required to conduct an independent investigation after receiving a finding from the
Board of Survey that property was lost due to inadequate inventory management
control, as in the case of the October 2012 Report of Survey. HT at 288-97, 429-35;
IAF, Tab 8 at 46-47.
6
proposing official, there were no complaints about the appellant’s investigations
and that the prior head of logistics had commented that the appellant’s
investigations were detailed. PFR File, Tab 3 at 9; HT at 50-51.
¶10 Accordingly, we remand the appeal to the administrative judge to make
credibility findings concerning whether, during the October 2012 conversation,
the proposing official directed the appellant to conduct independent
investigations, including witness interviews, and, if so, whether the appellant
failed to conduct a proper investigation of the October 2012 Report of Survey.
See, e.g., Posey v. Department of Defense, 106 M.S.P.R. 472, ¶ 13 (2007) (stating
that the administrative judge, who heard the testimony firsthand and observed the
demeanor of the witnesses, is in the best position to assess credibility).
¶11 The appellant’s remaining arguments concerning this char ge are
unpersuasive. First, he argues that he was prejudiced because the deciding
official testified regarding investigation procedures for Reports of Survey set
forth in the national policy without producing a copy of the policy. 7 PFR File,
Tab 3 at 10. However, the administrative judge did not rely on any testimony or
procedures regarding the national policy in making her findings. ID at 11.
Further, the deciding official testified that, in sustaining this specification, she
considered the appellant’s failure to abide by the directions of the proposing
official to conduct independent investigations, not any alleged failure to follow
the procedures in the national policy. HT at 384-85. Second, he argues that the
charge is properly construed as a failure to follow instructions charge and the
agency failed to meet its burden of proving the elements of such a charge. PFR
File, Tab 3 at 11-13. We find such a distinction is immaterial because the
7
The appellant has submitted a copy of the national policy for the first time on review.
PFR File, Tab 3 at 476-86. We have not considered this document because the
appellant has not shown that it was unavailable before the record closed despite his due
diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R.
§ 1201.115(d).
7
appellant’s failure to perform his duties as directed by his supervisors amounts to
a failure to perform his positions duties.
The administrative judge correctly found that the agency proved the charge of
failure to follow established police procedures.
¶12 The administrative judge sustained three of the four specifications
supporting the agency’s charge of failure to follow police procedures, which
relate to the appellant’s failure to comply with agency policy to be in possession
of his assigned weapon at all times while on duty. ID at 12‑18. As described in
the initial decision, in specification 1, the agency alleged that the appellant
violated this policy on 51 separate dates between October 2010 and July 2012,
when he was not armed for all hours he was on duty. IAF, Tab 8 at 63. As the
initial decision indicates, in specification 2, the agency alleged that the appellant
violated this policy on July 2, 2012, when he responded to a felony arrest scene
unarmed. Id. As set forth in the initial decision, in specification 3, the agency
alleged that, after being instructed on November 16, 2012, that he must be armed
at all times while on duty, on November 21, 2012, the appellant was not armed
for all hours while on duty. 8 Id. at 64.
¶13 Regarding the first specification, the administrative judge found that the
appellant admitted to being unarmed on the majority of the dates set forth in the
specification. ID at 14-15. Regarding the second specification, the
administrative judge found that the appellant did not dispute that he was unarmed
at the felony arrest scene on July 2, 2012. ID at 16. Regarding the third
specification, the administrative judge found that the attendance records and
weapons log indicated that the appellant was not armed for all hours while he was
on duty on November 21, 2012. 9 ID at 17-18.
8
Specification 3 also charged the appellant with not being armed for all hours he was
on duty on December 13, 2012, IAF, Tab 8 at 64, but the agency withdrew this date at
the hearing, I-3 AF, Tab 23, Hearing Compact Disc (HCD), track 1 at 46:00.
9
The administrative judge found that the agency proved that the appellant violated the
weapons policy when he was unarmed at times on December 13, 2012, despite the fact
8
¶14 On review, the appellant argues, for the first time, that he was not required
to follow the weapons policies because his position description indicates that such
policies are merely guidelines for criminal investigators. PFR File, Tab 3 at 15.
We generally will not consider this argument because the appellant has not shown
that he could not have raised it before the administrative judge. See Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R.
§ 1201.115(d). He also contends that the agency failed to show certain
exceptions to the policy did not apply and the administrative judge incorrectly
shifted the burden to him to show that they did apply. PFR File, Tab 3 at 16.
However, the agency’s burden of proving its charges by preponderant evidence
does not require it to show that each and every exception to the rule did not apply
for each date. See 5 C.F.R. § 1201.4(q) (defining preponderant evidence as the
degree of relevant evidence that a reasonable person, considering the record as a
whole, would accept as sufficient to find that a contested fact is more likely to be
true than untrue); see also 5 C.F.R. § 1201.56(b)(1)(ii).
¶15 Regarding specification 2, the appellant disputes, as he did below, whether
he technically “responded” to the scene or was a “responding officer” because he
contends that the suspects had been apprehended prior to his arrival. PFR File,
Tab 3 at 17. He also argues that the agency failed to show that, as a criminal
investigator, he was required to have a weapon at the scene. Id. The
administrative judge found that the relevant policy required the appellant to be in
possession of his weapon while on duty on department property. ID at 13. The
appellant does not dispute that he was present at the scene unarmed. Nor did he
dispute that the incident occurred on department property. Although he testified
that he was on the way to a funeral when he was called to the scene, HT at 137,
the administrative judge credited the proposing official’s testimony that the
that the agency withdrew this specification as to this date. ID at 17-18. Accordingly,
we vacate this finding.
9
appellant either should not have reported to the scene unarmed or should have
obtained a weapon before responding, ID at 16-17.
¶16 The appellant also reiterates his argument that the agency failed to show
that his failure to have a weapon at the scene on July 2, 2012, put others at risk
because the suspects already had been detained. PFR File, Tab 3 at 17. The
administrative judge considered this argument, but found that the appellant’s
decision to show up at a felony arrest scene unarmed rendered him vulnerable,
without means of defending himself and others if the situation changed, thereby
putting himself and other people at risk. ID at 17. Thus, the appellant’s
argument constitutes mere disagreement with the administrative judge’s findings,
and does not provide a basis for reversal. 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); see also Broughton v. Department of
Health & Human Services, 33 M . S . P . R . 357, 359 (1987) (same).
¶17 Lastly, we find unavailing the appellant’s contention that specification 3
should be construed as a charge of failure to follow instructions. PFR File, Tab 3
at 17-19. It is well settled that the Board adjudicates the charges invoked by the
agency as described in the agency’s proposal and decision notices. See, e.g.,
Rackers v. Department of Justice, 79 M.S.P.R. 262, 276 (1998), aff’d, 194 F.3d
1336 (Fed. Cir. 1999) (Table); Gottlieb v. Veterans Administration, 39 M.S.P.R.
606, 609 (1989). We agree with the administrative judge that the agency proved
that the appellant was not armed for all hours while on duty on November 21,
2012. ID at 17-18. The record reflects that he worked from 8 a.m. to 4 p.m., but
only checked out his weapon from 7:44 to 13:03. IAF, Tab 11 at 57, 66. Thus,
he was unarmed while on duty for about 3 hours. Accordingly, the administrative
judge properly sustained the charge based on the three sustained specifications.
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
10
single charge, the agency need not prove all of the specifications; rather, proof of
one or more of the supporting specifications is sufficient to sustain the charge).
We vacate the administrative judge’s penalty analysis and remand the appeal for
reconsideration of the reasonableness of the penalty.
¶18 The administrative judge deferred to the agency’s decision to remove the
appellant, relying on the deciding official’s testimony that she would have
removed the appellant even absent the lack of candor charge. ID at 22-23. On
review, the appellant argues that the administrative judge should have considered
whether removal was reasonable in light of the sustained charges and
specifications and mitigating factors. 10 PFR File, Tab 3 at 24-30. We agree.
¶19 When an agency fails to prove all of its charges, the administrative judge
must consider carefully whether the sustained charges merit the penalty imposed
by the agency. Reid v. Department of the Navy, 118 M.S.P.R. 396, ¶ 24 (2012).
In such circumstances, if the agency does not indicate that it desires a lesser
penalty to be imposed on fewer charges, the Board may mitig ate to the maximum
reasonable penalty if a careful balancing of the mitigating factors warrants, or the
Board may impose the same penalty imposed by the agency based on justification
of that penalty as the maximum reasonable penalty after balancing those f actors.
Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999); Parker v. U.S. Postal
Service, 111 M.S.P.R. 510, ¶ 6, aff’d, 355 F. App’x 410 (Fed. Cir. 2009). An
agency’s failure to prove all of its supporting specifications may require, or
contribute to, a finding that the agency’s penalty is not reasonable. See Payne v.
U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996).
¶20 Here, the lack of candor charge was not sustained, and three of the four
specifications underlying the failure to properly perform the duties of the position
10
The appellant also argues that the agency failed to prove a nexus between the
sustained misconduct and the efficiency of the service because there is no clear
relationship between the sustained specifications and his job duties. PFR File, Tab 3
at 21-24. We find that the appellant’s assertions on review do not demonstrate error in
the administrative judge’s well-reasoned analysis on this point. ID at 22.
11
charge and one of the four specifications underlying the failure to follow
established police procedures charge were not sustained or withdrawn. The
agency also withdrew one of the dates underlying specification 3 of its failure to
follow established police procedures charge. Although t he administrative judge
cited the deciding official’s testimony that she would have removed the appellant
absent the lack of candor charge, such testimony does not take into consideration
the fact that the agency failed to prove or withdrew many of the specifications in
support of the sustained charges. Thus, it does not establish that the agency
would have imposed the same penalty for the sustained specifications because
there is a significant difference between the misconduct that the agency specified
and the misconduct ultimately sustained. Accordingly, on remand, the
administrative judge must determine the maximum reasonable penalty appropriate
for the sustained charges and specifications.
¶21 In assessing the reasonableness of the penalty, the administrative judge
should consider such factors as the nature and seriousness of the offense, the
employee’s past disciplinary record, the consistency of the penalty with the
agency’s table of penalties, and the consistency of the penal ty with those imposed
on other employees who engaged in similar misconduct. See O’Lague v.
Department of Veterans Affairs, 123 M.S.P.R. 340, ¶ 18 (2016); Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 305 (1981). In particular, the
administrative judge should consider whether the appel lant’s failure to have his
weapon in his possession at all times while on duty prior to November 16, 2012,
the dates underlying specifications 1 and 2 of the agency’s failure to follow
police procedures charge, constituted a common practice, and whether other
employees were disciplined for such violations.
¶22 It appears undisputed that the agency’s weapons policy, which required
officers to be armed at all times while on duty, was not strictly observed or
enforced prior to November 16, 2012, several months after the proposing official
became the Acting Police Chief. The proposing official testified that after he
12
became Acting Police Chief in May 2012, he observed that the agency’s weapons
policy was not being followed and a few officers did not check out their firearms
on a daily basis. HT at 175, 187. As a result, on November 16, 2012, he sent an
email to seven officers, including the appellant, expressing as much. HT at 187;
IAF, Tab 12 at 5. In his email, he stated, “[m]any of you rarely arm up upon
arriving to work” and indicated that moving forward the policy would be enforced
and future violations would result in discipline. IAF, Tab 12 at 5.
¶23 The proposing official further testified that he did not discipline or propose
discipline for any other officer for violating this policy. HT at 335. The deciding
official concurred that she had not dealt with any disciplinary actions relating to
any officer being disciplined for violating the weapons policy, but that she
would not have seen disciplinary actions of less than a 14-day suspension. HT
at 445‑46. The appellant’s supervisor also testified that the weapons policy
was not strictly followed prior to the proposing official’s arrival and he was not
aware of anyone who had ever been disciplined for failing to follow it. HT at 46.
Notwithstanding these circumstances, the agency charged the appellant with
violating the weapons policy on numerous dates prior to November 16, 2012,
when it began enforcing the policy. IAF, Tab 8 at 63.
¶24 The appellant raised a claim of disparate penalties below, which the
administrative judge acknowledged in the prehearing order, I -3 AF, Tab 13 at 6-7,
but did not address in the initial decision. The record does not contain facts
sufficient to ascertain what penalty, if any, the agency has imposed for conduct
similar to the sustained charges. Lewis v. Department of Veterans Affairs,
113 M.S.P.S. 657, ¶ 15 (2010). Accordingly, on remand, the administrative judge
shall provide the parties an opportunity to submit supplemental evidence and
argument concerning the circumstances and factors relevant to the determination
of a reasonable penalty.
13
The administrative judge failed to assess all relevant evidence concerning the
appellant’s affirmative defense of retaliation.
¶25 The administrative judge found that the appellant failed to provide any
direct or circumstantial evidence of retaliation for his prior EEO activity; namely
the filing of a formal complaint of discrimination on February 25, 2013, 11 because
both the proposing and deciding officials testified that they were not aware of this
activity. ID at 20-21. The administrative judge further found that the appellant
provided no other evidence of suspicious timing, ambiguous statements, behavior
toward or comments directed at other employees with prior EEO activity, or other
facts from which an inference of retaliatory intent might be drawn. ID at 21.
¶26 On review, the appellant contends that the administrative judge improperly
found that the proposing and deciding officials were not aware of his prior EEO
activity. PFR File, Tab 3 at 20. The record contains conflicting evidence
concerning whether the proposing official was aware of the appellant’s prior EEO
activity. The appellant testified that he filed an EEO complaint in mid-2012,
concerning the lack of a proper investigation of an incident between him and a
coworker who had threatened to kill him. HT at 95, 141-44. According to the
appellant, the proposing official was aware of his 2012 EEO complaint because
he participated in efforts to informally resolve it through mediation. HT at 143.
The appellant’s supervisor testified that he participated in a mediation of the
appellant’s 2012 EEO complaint and discussed the appellant’s requested
settlement with the proposing official. HT at 56-58. According to the appellant’s
supervisor, the proposing official rejected the appellant’s proposed settlement and
removed the appellant’s supervisor from further participation in the mediation.
HT at 57-58. The proposing official, however, testified that he was not aware of
the appellant’s 2012 EEO activity. HT at 325-27.
11
The initial decision references this EEO complaint as being filed on February 25,
2013, ID at 20, but it was filed on February 26, 2013, IAF, Tab 27 at 128, 132.
14
¶27 The appellant also filed an EEO complaint on February 26, 2013, which he
subsequently amended to include his removal. IAF, Tab 27 at 128. The
proposing official was aware of this EEO complaint and provided testimony in
connection with it. Id. at 129; HT at 315. The proposing official, however,
could not have proposed the appellant’s removal in retaliation for the appellant’s
February 26, 2013 EEO complaint because the record reflects that the appellant
did not initiate contact with an EEO counselor regarding this complaint until
February 8, 2013, after his removal already had been proposed on January 10,
2013. IAF, Tab 8 at 62, Tab 27 at 132.
¶28 We agree that the administrative judge improperly found that the deciding
official was unaware of the appellant’s prior EEO activity because she did not
testify that she had no knowledge of such activity. PFR File, Tab 3 at 20; ID
at 21. Rather, she testified that she was aware that the appellant had alleged in
his response to the proposed removal that the proposing official was retaliating
against him for his prior EEO activity. HT at 458. Accordingly, on remand, the
administrative judge shall assess all relevant testimony concerning whether the
proposing and deciding officials were aware of the appella nt’s prior EEO activity
and make necessary credibility determinations to resolve conflicting testimony.
¶29 On review, the appellant also argues that the adminis trative judge failed to
analyze all relevant evidence concerning his retaliation claim. 12 PFR File, Tab 3
at 20-21. Significantly, he contends that the administrative judge failed to
consider evidence that the proposing official was found to have committe d
reprisal, as well as evidence that, shortly after he became Acting Police Chief, the
12
We have not considered the appellant’s argument raised for the first time on review
that his removal was due to race discrimination. PFR File, Tab 3 at 19-20. Although
the appellant alleged race discrimination in his EEO complaint, IAF, Tab 27 at 128, he
did not raise an affirmative defense of race discrimination before the administrative
judge, IAF, Tab 1 at 4; I-3 AF, Tab 13 at 7-8, and he has not shown that his claim is
based on any new and material evidence that was not previously available despite his
due diligence, see Banks, 4 M.S.P.R. at 271; 5 C.F.R. § 1201.115(d).
15
proposing official had asked for a list of names of officers who had engaged in
prior EEO activity. Id. at 7, 21. Based on our review of the record, we agree
with the appellant that the initial decision did not adequately summarize the
evidence relating to his retaliation claim. See Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980) (stating that an initial decision must
identify all material issues of fact and law, summarize the evidence, resolve
issues of credibility, and include the administrative judge’s conclusions of law
and his legal reasoning, as well as the authorities on which that reasoning rests).
¶30 The record contains a copy of a final agency decision regarding the
appellant’s February 26, 2013 EEO complaint. IAF, Tab 27 at 128-50. In this
complaint, the appellant alleged that he was subjected to discrimin ation and
retaliation from May 2012 until he was removed on March 8, 2013, when the
proposing official made derogatory statements about the EEO process, failed to
prevent interaction between the appellant and a coworker who made a death threat
against him, issued him a letter of inquiry accusing him of defrauding the
Government by claiming overtime for hours he did not work, unjustly accused
him of violating the agency’s weapon’s policy, while not questioning other
officers who had engaged in the same conduct, and removed him. Id. at 128-32.
¶31 In its final agency decision, the agency determined that the proposing
official had engaged in “per se reprisal” by expressing hostility toward the EEO
process. Id. at 138-41. The agency found that, during supervisory meetings,
which the appellant attended, the proposing official made statements to the effect
that he “didn’t care about EEO [complaints]” and that he would “fight them tooth
and nail.” Id. at 130, 138-41. At the hearing, the appellant’s supervisor testified
as to having heard the proposing official make comments to this effect. HT at 53.
The appellant’s supervisor also testified that, in the spring of 2012, shortly after
the proposing official became the Acting Police Chief, the prop osing official
asked him for a list of people who “came back after . . . their EEO [complaints]
were settled with the court system or MSPB.” HT at 53-55. The administrative
16
judge found that the appellant did not provide any evidence of behavior toward or
comments directed at employees with prior EEO activity without mentioning any
of this evidence.
¶32 The appellant also argued below that the proposing official was searching to
find reasons to fire him and intentionally charged him with misconduct that he
knew he could not prove in retaliation for the appellant’s prior EEO activity.
I‑3 AF, Tab 23, Hearing Compact Disc (HCD), track 2. First, he alleged that, in
his response to the notice of proposed removal, he pointed out numerous factual
errors in the proposal notice, but the agency ignored them and sustained his
removal. I-3 AF, Tab 12 at 2‑3. He also claimed that the agency failed to prove
or withdrew many of its specifications. I-3 AF, Tab 23, HCD, track 2.
¶33 Second, he argued that the proposing official retaliated against him by
charging him with violating the agency’s weapons policy because he did not
discipline any of the other similarly situated employees who also had violated the
policy. He contended that the agency offered no explanation as to why it
disciplined him, but did not discipline other employees. I-3 AF, Tab 23, HCD,
track 2; IAF, Tab 27 at 131. The appellant also contends that the administrative
judge failed to consider that the agency was searching for reasons to fire him as
evidenced by the fact that it charged him with failing to be armed at a felony
arrest scene on July 2, 2012, an incident that occurred over 6 months prior to his
proposed removal, and for which he was not disciplined at the time. HT
at 162‑63; PFR File, Tab 3 at 16.
¶34 Third, he argued that the proposing official intentionally assigned the same
coworker who had threatened to kill the appellant, and about whom the appellant
filed his 2012 EEO complaint, to investigate the charges knowing that he would
be biased against the appellant. I-3 AF, Tab 12 at 1-2, Tab 23 HCD, track 2. The
appellant contended that the evidence established that this coworker did not
conduct a legitimate investigation, and that notwithstanding numerous problems
17
with his report of investigation, the agency relied upon an incomplete draft report
to remove the appellant. I-3 AF, Tab 23, HCD, track 2.
¶35 The investigation conducted by the coworker related to specification 1 of
the agency’s charge of failure to properly perform job duties in which the agency
alleged that the appellant failed to follow up on altered receipts provided to him
regarding an investigation of theft. IAF, Tab 8 at 62, 72-75. The administrative
judge did not sustain this specification, finding that the report drafted by the
coworker, and relied up by the agency to remove the appellant, was an incomplete
preliminary draft, not a final draft, it was dated the same date that the coworker
had been appointed to look into the appellant’s handling of the incident, but it s
text referred to investigatory work completed by the coworker on subsequent
dates, and it was missing words or sentences and at least one page. 13 ID at 6-8.
The administrative judge further found that this report did not represent a
thorough examination of the matters at issue, and that the coworker came to the
cursory conclusion that the appellant mishandled the investigation, not on any
factual basis, but based on his “many years of education, experience and
knowledge,” which she found too speculative. Id. at 7.
¶36 In light of the foregoing, we remand the appeal for further consideration of
the appellant’s affirmative defense. On remand, the administrative judge shall
assess all relevant evidence and make new findings as to whether the appellant
proved that his removal was a result of retaliation.
ORDER
¶37 For the reasons discussed above, we remand this case to the regional office
for further adjudication. On remand, the administrative judge shall make
credibility findings to determine whether the agency proved its failure to perform
13
The coworker who drafted the report testified that the report in the agency file was
his preliminary draft and, at the hearing he produced a copy of the final report. I-3 AF,
Tab 22, HCD, track 4 at 45:00; compare IAF, Tab 8 at 72-75, with I-3 AF, Tab 25
at 1‑5.
18
the duties of the position charge and analyze all relevant evidence to determine
whether the appellant proved his affirmative defense of retaliation. If the
administrative judge finds that the appellant has not proven his affirmative
defense, she shall determine the maximum reasonable penalty for the sustained
misconduct, considering all facts, circumstances, and mitigating factors . She
shall allow the parties an opportunity to submit brief ing concerning the
circumstances and factors relevant to the determination of a reasonable penalty.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
