                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ALBERT W. MORTON,                               DOCKET NUMBER
                  Appellant,                         AT-0752-14-0806-I-1

                  v.

     SOCIAL SECURITY                                 DATE: May 27, 2015
       ADMINISTRATION,
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Albert W. Morton, Atlanta, Georgia, pro se.

           Jeffrey Wilson, and Nadine DeLuca Elder, Atlanta, Georgia, for the
              agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     affirmed his 30-day suspension for failing to follow supervisory instructions and
     directives. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     on an erroneous interpretation of statute or regulation or the erroneous application
     of the law to the facts of the case; the judge’s rulings during either the course of
     the appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.       See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        The appellant is a Social Insurance Specialist, GS-0105-13, at the Social
     Security Administration’s Center for Disability Operations in Atlanta, Georgia.
     Initial Appeal File (IAF), Tab 11 at 41-42. He was suspended for 30 days on an
     8-specification charge of failure to follow supervisory instructions and
     directives. Id. at 33-42. The administrative judge decided the appeal based on
     the written submissions, as the appellant did not request a hearing. IAF, Tab 1 at
     1, Tab 28, Initial Decision (ID) at 1. The administrative judge sustained seven of
     the eight specifications, found that the agency established nexus, and concluded
     that the penalty was reasonable.      ID at 4-14.     He rejected the appellant’s
     affirmative defenses of harmful procedural error, due process violations, laches,
     age discrimination and reprisal for equal employment opportunity (EEO) activity.
     ID at 15-24. The appellant filed this petition for review. Petition for Review
     (PFR) File, Tab 1.
¶3        On review, the appellant reasserts several arguments that he made before
     the administrative judge, but he has failed to meet any of the Board’s criteria for
     granting a petition for review. See 5 C.F.R. § 1201.115(a)-(d). His arguments
     largely pertain to whether the suspension was proper.          He asserts that his
                                                                                                    3

     immediate supervisor and the proposing official, D.B., lacked the authority to
     give him instructions and directives.            PFR File, Tab 1 at 6-12.             Instead he
     contends that his position description shows that he reports to the Center Director
     and not to an intermediate supervisor.                Id. at 8.    He argues that the agency
     violated 5 U.S.C. § 2302(b)(12) 2 when it suspended him because D.B.’s
     placement       in   a   supervisory       position     violated    the   first   merit   system
     principle. 3 Id. at 7-9.       He also argues that the administrative judge failed to
     uphold the first merit system principle when he found that the Board lacked
     jurisdiction     to determine whether           D.B.     was properly in          a   supervisory
     position. Id. at 9-10.
¶4           The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.                    Maddox v. Merit Systems
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).                          We find that the
     administrative judge’s analysis regarding D.B.’s supervisory authority was
     correct. As the administrative judge explained, the appellant cannot use a Board
     proceeding to collaterally attack D.B.’s placement in a supervisory position. See
     ID at 3-4.       The Board lacks jurisdiction over that issue.              The appellant has
     identified no law, rule, or regulation that would support a finding of jurisdiction.

     2
         Section 2302(b)(12) states:
              Any employee who has authority to take, direct others to take,
              recommend, or approve any personnel action, shall not, with respect to
              such authority, take or fail to take any other personnel action if the taking
              of or failure to take such action vio lates any law, ru le, or regulation
              implementing, or directly concerning, the merit system principles
              contained in section 2301 of this title.
     3
         The first merit system principle is:
              Recruitment should be from qualified individuals from appropriate
              sources in an endeavor to ach ieve a work force from all segments of
              society, and selection and advancement should be determined solely on
              the basis of relative ability, knowledge, and skills, after fair and open
              competition which assures that all receive equal opportunity.
     5 U.S.C. § 2301(b)(1).
                                                                                               4

     As for the agency’s alleged violation of the merit system principles, the principles
     may be used to interpret a law, rule, or regulation asserted to have been violated
     by     an   agency     personnel      practice.        Wilburn     v.    Department      of
     Transportation, 757 F.2d 260, 262 (Fed. Cir. 1985). Allegations that an agency
     has violated the principles, however, do not create an independent cause of action
     for a Board appeal. Id.; see Phillips v. General Services Administration, 917 F.2d
     1297, 1298 (Fed. Cir. 1990).
¶5          The appellant likewise has offered no new evidence proving D.B.’s
     supervisory authority.     He asserts that the national position description for a
     Social Insurance Specialist states that he works “under the direction of the Center
     Director” and that description is also inconsistent with the agency’s regional
     position description, which states that he works “under the general supervision of
     the Disability Programs Branch Chief.” PFR File, Tab 1 at 6, 8, 12 n.11; IAF,
     Tab 13 at 20, Tab 24 at 50. Neither position description, however, precludes the
     appointment of intermediate supervisory personnel.
¶6          The appellant also argues that the suspension was not in accordance with
     law.   See 5 U.S.C. § 7701(c)(2)(C) 4; see also PFR File, Tab 1 at 3, 18; IAF,
     Tab 11 at 35. Pursuant to 5 U.S.C. § 7513(a), he explains, a suspension of more
     than 14 days may be imposed “[u]nder regulations.” PFR File, Tab 1 at 3. He
     argues that the agency did not charge him with a violation of any regulation but,
     instead, with violating its Annual Personnel Reminders (APRs). 5                 Id.   The
     appellant, however, misconstrues section 7513(a), which is referencing the
     regulations for adverse actions taken pursuant to chapter 75.                See 5 U.S.C.
     § 7513(a); see also 5 C.F.R. Part 752(d). As for the agency’s reliance on the


     4
       Section 7701(c)(2)(C) states: “[T]he agency’s decision may not be sustained . . . if
     the employee . . . shows that the decision was not in accordance with law.”
     5
       The APRs are internal operational directives. APR 1.2 states that the employee
     “should be familiar with regulations and published directives that relate to [h is] official
     duties and responsibilities and should follow those directives.” IAF, Tab 11 at 35.
                                                                                            5

     APRs, it is well settled that an agency may promulgate its own legitimate,
     internal rules governing employee conduct, and discipline an employee based on
     those rules. See White v. Government Printing Office, 108 M.S.P.R. 355, ¶¶ 4-5
     (2008) (the agency proved the appellant’s violation of “post orders”); see also
     Pedeleose v. Department of Defense, 110 M.S.P.R. 508, ¶ 16 (an employee must
     comply with an agency order, even where he may have substantial reason to
     question it and is taking steps to challenge its validity through appropriate
     channels), aff’d, 343 F. App’x 605 (Fed. Cir. 2009).
¶7         The appellant proceeds to examine each of the seven specifications that the
     administrative judge sustained. See PFR File, Tab 1 at 12-23. In doing so, he
     largely restates his original arguments on appeal and summarily concludes that
     the administrative judge failed to meet the requirements of 5 C.F.R.
     § 1201.111(b)(1). 6 See id. at 14, 17, 21-22. It is unnecessary to reiterate the
     administrative judge’s analysis here, but we will address one particular issue: the
     appellant contends that specifications 4 through 7 were flawed because they
     stated that he failed to contact management when he found himself unable to meet
     certain deadlines. See id. at 20-21. The appellant explains that, although the
     charge was “[f]ailure to follow [his] supervisor’s instructions and directives,”
     D.B. was not part of the Center’s management team. Id.; see IAF, Tab 12 at 4-5.
     He further explains that he was instructed to contact D.B. rather than someone in
     management. PFR File, Tab 1 at 20. Citing 5 U.S.C. § 7103(a), he asserts that
     the terms “management official” and “supervisor” are not interchangeable. PFR
     File, Tab 1 at 19; see 5 U.S.C. § 7103(a)(10)-(11) (defining “supervisor” and
     “management official”).     Section 7103(a), however, specifically states that the
     definitions therein are for the purpose of chapter 71. Chapter 71 does not fall
     within   the   Board’s    original    or   appellate   jurisdiction,   see   5   C.F.R.

     6
       Section 1201.111(b)(1) states: “Each initial decision will contain . . . [f]indings of
     fact and conclusions of law upon all the material issues of fact and law presented on the
     record.”
                                                                                       6

      §§ 1201.1-1201.3, and the appellant cites no authority indicating that the Board is
      bound by the definitions in that chapter.
¶8         As a general matter, moreover, the appellant’s bare assertions that the
      findings of fact are wrong will not in itself justify granting the petition for
      review, especially given the administrative judge’s thorough review of the issues,
      evidence, and applicable law.     See ID at 4-9; see also 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); Broughton v.
      Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶9         The appellant also takes issue with the administrative judge’s finding that
      nexus is self-evident. PFR File, Tab 1 at 23-24; see ID at 9. He states that the
      initial decision is “confusing” and “an abuse of discretion due to the lack of
      substantive development.”     PFR File, Tab 1 at 23.        The agency, however,
      documented several instances of the appellant’s failure to follow management
      directives, which the agency found affected his own job performance and that of
      other agency employees, and undermined management’s trust in him. See IAF,
      Tab 11 at 33-39, Tab 12 at 4-10. Nexus clearly exists between failure to follow
      management directives and the efficiency of the service.         See Archerda v.
      Department of Defense, 121 M.S.P.R. 314, ¶ 24 (2014) (the charge of failure to
      follow instructions relates directly to the efficiency of the service); see also
      Blevins v. Department of the Army, 26 M.S.P.R. 101, 104 (1985) (failure to
      follow instructions or abide by requirements affects the agency’s ability to carry
      out its mission), aff’d, 790 F.2d 95 (Fed. Cir. 1986) (Table).
¶10        The appellant asserts that the penalty imposed by the agency is an excessive
      fine forbidden by the Eighth Amendment of the Constitution. PFR File, Tab 1
      at 24; see U.S. Const. amend. VIII.         He has not shown, however, that this
      provision applies to Board proceedings. In any event, a penalty analysis under
      Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), is the proper
                                                                                             7

      framework in which to examine whether an agency-imposed penalty is
      reasonable. The agency conducted a thorough Douglas analysis, see IAF, Tab 11
      at 3-4, which the administrative judge carefully reviewed, see ID at 9-14.
      Regarding the first Douglas factor, the nature and seriousness of the offense, 7 see
      Douglas, 5 M.S.P.R. at 305, the appellant specifically asserts that the agency
      offered no evidence showing that his actions caused harm, see PFR File, Tab 1
      at 24.     However, the agency was not required to make such a showing, see
      Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 556 (1996), and further, the
      proven charge itself is a serious offense, see L’Bert v. Department of Veterans
      Affairs, 88 M.S.P.R. 513 (2001).
¶11            The appellant reasserts several of the affirmative defenses he brought before
      the administrative judge. He argues, for example, that the decision letter failed to
      state the “specific reasons therefor” for sustaining the action against him. PFR
      File, Tab 1 at 5; see 5 U.S.C. § 7513(b)(4).           The decision letter, however,
      identified each specification, addressed the appellant’s responses, and set forth
      extensive analysis on the penalty issue. See IAF, Tab 11 at 33-39. The proposal
      notice addressed the specifications in even             greater detail and, as the
      administrative judge explained, was the constitutionally correct way to give the
      appellant notice of the charges.       ID at 18; see IAF, Tab 12 at 5-7; see also
      Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985) (“The
      essential requirements of due process . . .        are notice and an opportunity to
      respond.”). 8



      7
        The Board will consider “[t]he nature and seriousness of the offense, and its relation
      to the employee’s duties, position, and responsibilities, including whether the offense
      was intentional or technical or inadvertent, or was committed maliciously or for gain, or
      was frequently repeated.” Douglas, 5 M.S.P.R. at 305.
      8
        The appellant also asserts that the agency violated his right to due process “because
      the agency accumulated the eight (8) specifications against him without notice or
      warning, some involving earlier completed, submitted, and accepted work
      assignments.” PFR File, Tab 1 at 4. The misconduct occurred, however, within a few
                                                                                               8

¶12         The appellant argues that the deciding official                failed to comply
      with 5 C.F.R. § 752.404(g)(1) because he “did not duly consider appellant’s
      answer” to the proposal notice. PFR File, Tab 1 at 5. The plain language of the
      regulation, however, does not require the agency to address every contention that
      the appellant raised in his response.       Instead, it requires the agency simply to
      “consider” the response. 9 An agency is presumed to have considered a response
      if, as here, the response is referenced in the decision letter and submitted with the
      agency file.    Franks v. Department of the Air Force, 22 M.S.P.R. 502, 505
      (1984); see IAF, Tab 11 at 34, 43-48. The appellant also argues that the deciding
      official did not allow him to give an oral response. PFR File, Tab 1 at 4. The
      appellant, however, was offered the opportunity to schedule one.                See IAF,
      Tab 12 at 9. He submitted nothing to suggest that he attempted to schedule an
      oral response and that his scheduling request was denied.              In any event, he
      offered an extensive written response, which is in the record. See IAF, Tab 11
      at 43-85. Where an agency has given an employee the opportunity to make a
      written reply to the notice of proposed adverse action, its failure to afford him an
      oral reply does not violate his right to minimum due process.                   Kinsey v.
      Department of the Navy, 59 M.S.P.R. 226, 229 (1993).               In short, the agency
      neither violated the appellant’s due process rights nor committed harmful error in
      this respect.
¶13         The appellant also argues that the administrative judge set aside his age
      discrimination claim without considering it.         PFR File, Tab 1 at 25-26.         The
      initial decision, however, includes a thorough discussion of the appellant’s
      allegations and correctly applies the law. ID at 19-23. Although the appellant

      months before the proposal notice was issued. See IAF, Tab 12 at 4-5. The appellant
      also had been recently disciplined for similar m isconduct. See IAF, Tab 13 at 8-13.
      9
        Section 752.404(g)(1) states that the agency will consider on ly the reasons specified in
      the notice of proposed action and any answer of the employee or his or her
      representative, or both, made to a designated official, as well as any medical
      documentation reviewed pursuant to paragraph (f) of that section.
                                                                                            9

      points to circumstantial evidence and a single statement that he considers to be
      direct evidence, see PFR File, Tab 1 at 25-26, his allegations of discrimination
      are weak. As for the single piece of “direct” evidence, D.B.’s comment that it
      was “time for him to go,” the administrative judge found no “direct reflection of a
      discriminatory attitude.”     ID at 22.     A showing of discriminatory intent is
      necessary for such a remark to be probative.            See George v. U.S. Postal
      Service, 74 M.S.P.R. 71, 80 (1997) (direct evidence both reflects directly the
      alleged discriminatory attitude and bears directly on the contested employment
      decision); see also Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.
      2004) (“[O]nly the most blatant remarks whose intent could mean nothing other
      than to discriminate on the basis of some impermissible factor constitute direct
      evidence of discrimination.”).
¶14            The appellant further argues that he met his burden to prove the agency
      acted in reprisal for his prior EEO activity. He points to the fact that the charge
      was issued within days of his request to the Equal Employment Opportunity
      Commission (EEOC) for de novo review of a complaint based on an earlier
      disciplinary action. PFR File, Tab 1 at 26-27. The administrative judge found
      that he offered no evidence that the proposing or deciding officials knew of his
      EEO activity.      See ID at 23.      In response, the appellant asserts that the
      administrative judge “fail[ed] to exercise reasonable administrative inquiry about
      how the agency generally handles matters such as appeals to the EEOC.” 10 PFR
      File, Tab 1 at 27.      The appellant, however, bore the burden of proof on this
      issue.       5 C.F.R.   § 1201.56(b)(2)(I)(C);    see   Smith    v.   Department      of
      Transportation, 106 M.S.P.R. 59, ¶ 29 (2007).           Although the administrative

      10
         The appellant also argues that the proposal to suspend him violated the provisions
      against the passage of ex post facto laws in the U.S. Constitution because the agency
      did not issue a charge until he asked the EEOC for reconsideration of its findings on an
      existin g complaint. PFR File, Tab 1 at 3; see U.S. Const., art. I, § 9, cl. 3; see also
      IAF, Tab l3 at 8-13. This issue is more appropriately addressed in the context of his
      reprisal claim.
                                                                                           10

      judge’s duties include ensuring development of the record on significant issues,
      see 5 C.F.R. § 1201.41(b)(5)(ii), the appellant offers no authority to support the
      assertion that the administrative judge bears the responsibility for independently
      investigating agency functions.
¶15         Finally, the appellant argues that the administrative judge made a series of
      “intemperate assessments” rather than “adhering to the Federal regulation that
      requires findings of fact and conclusions of law on the material issues presented
      on the record.” PFR File, Tab 1 at 10; see 5 C.F.R. § 1201.111(b). He asserts
      that these assessments border on prejudicial overreach and call into question the
      validity of the initial decision. PFR File, Tab 1 at 12.
¶16         In making a claim of bias or prejudice against an administrative judge, a
      party must overcome the presumption of honesty and integrity that accompanies
      administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
      382, 386 (1980). An administrative judge’s conduct during the course of a Board
      proceeding warrants a new adjudication only if the administrative judge’s
      comments or actions evidence “a deep-seated favoritism or antagonism that would
      make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
      1358, 1362–63 (Fed. Cir. 2002). “[J]udicial remarks during the course of a trial
      that are critical or disapproving of, or even hostile to, counsel, the parties, or their
      cases, ordinarily do not support a bias or partiality challenge.” Liteky v. United
      States, 510 U.S. 540, 555 (1994). Additionally, “judicial rulings alone almost
      never constitute a valid basis for a bias or partiality motion . . . . and can only in
      the rarest circumstances evidence the degree of favoritism or antagonism required
      . . . when no extrajudicial source is involved.” Id. at 555.
¶17         Here, the appellant’s objections do not suggest any deep-seated bias and
      instead simply reflect his disagreement with the outcome of the appeal and the
      administrative judge’s characterization of his misconduct.             An appellant’s
      dissatisfaction with the ruling alone is insufficient to show bias. See Asatov v.
      Agency for International Development, 119 M.S.P.R. 692, ¶ 14 (2013), overruled
                                                                               11

on other grounds by Dean v. Department of Labor, 122 M.S.P.R. 276 (2015).
Accordingly, we find the appellant’s arguments are unavailing and affirm the
initial decision.

                    NOTICE TO THE APPELLANT REGARDING
                       YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
       You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                            Office of Federal Operations
                     Equal Employment Opportunity Commission
                                  P.O. Box 77960
                             Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                            Office of Federal Operations
                     Equal Employment Opportunity Commission
                                 131 M Street, NE
                                   Suite 5SW12G
                             Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
                                                                                   12

discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.          See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




FOR THE BOARD:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
