                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHAMARCUS STOCKTON,                             DOCKET NUMBER
                 Appellant,                          DA-0752-13-1025-I-3

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: October 9, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Michael D.J. Eisenberg, Esquire, Washington, D.C., for the appellant.

           Craig Paulson, Esquire, Texarkana, Texas, 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, VACATE the initial decision, and REMAND the
     case to the regional office for further adjudication in accordance with this Order.
     Specifically, we find that the administrative judge failed to address 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                          2

     appellant’s affirmative defense of retaliation for prior equal employment
     opportunity (EEO) activity. We therefore remand the appeal for adjudication of
     that affirmative defense and a new assessment of the agency’s penalty
     determination, if necessary.

                                        BACKGROUND
¶2           The appellant was employed as an Information Technology Specialist
     (Network/Infosec). Stockton v. Department of the Army, MSPB Docket No. DA-
     0752-13-1025-I-1, Initial Appeal File (I-1 IAF), Tab 3 at 8. The agency proposed
     his removal based upon charges of:         (1) providing the agency with an altered
     email to support his assertion that he applied, but failed to receive consideration,
     for a positon at the agency; and (2) lack of candor when he said that a computer
     glitch was the source of the altered email. Id. at 55. The appellant replied both
     orally and in writing to the proposal. Id. at 15-28. The agency sustained the
     charges and removed the appellant from Federal service. Id. at 9-11.
¶3           The appellant alleged that he applied for a noncompetitive promotion but
     that the agency denied that he applied for the position.        See id. at 101.    The
     appellant stated that he inquired as to whether his name was included on the
     referral list for the promotion and, upon hearing that the agency could not locate
     his application, he submitted both what he claimed was an acknowledgment letter
     indicating that he had applied for the position as well as a screen shot indicating
     that the status for his application to the position was unavailable. See id. at 84,
     101; Stockton v. Department of the Army, MSPB Docket No. DA-0752-13-1025-
     I-3, Initial Appeal File (I-3 IAF), Tab 5 at 19-20. The appellant also filed an
     EEO complaint in which he asserted that he was not selected for the promotion
     because of discrimination based upon his race and age. 2 I-3 IAF, Tab 5 at 33-37.
     The agency ordered an inquiry to determine whether the appellant submitted
     altered or falsified documents in an attempt to obtain eligibility for consideration

     2
         The appellant subsequently withdrew his EEO complaint. I-3 IAF, Tab 5 at 26.
                                                                                       3

     for the promotion. I-1 IAF, Tab 3 at 57-61. The appellant told the inquiry officer
     and another agency employee that he failed to receive consideration for the
     promotion because of a computer glitch. Id. at 58; I-3 IAF, Tab 5 at 65. After
     conducting the inquiry, the inquiry officer concluded that preponderant evidence
     established that the appellant submitted an altered acknowledgment letter in an
     attempt to obtain eligibility for consideration for the promotion and that the
     appellant’s assertion that a computer glitch had affected only his application
     submission and acknowledgment letter was not credible. I-1 IAF, Tab 3 at 60.
     The appellant’s removal followed. Id. at 9-11.
¶4        The appellant challenged the removal before the Board, asserting, inter alia,
     that: (1) the agency should not have sustained the charges; (2) the agency failed
     to prove a sufficient nexus between the alleged misconduct and his employment;
     (3) the penalty was too severe and unreasonable given the mitigating
     circumstances in the case; and (4) the agency committed a prohibited personnel
     practice under 5 U.S.C. § 2302(b)(1) when it proposed his removal and issued a
     removal decision in retaliation for his involvement in protected activity. I-1 IAF,
     Tab 1. He requested a hearing. Id.
¶5        After holding the requested hearing, the administrative judge found that
     (1) the appellant provided an altered email to support his assertion that he applied
     for, but failed to receive consideration for, a promotion; (2) the appellant lacked
     candor when he stated that a computer glitch was the source of the altered email;
     (3) disciplinary action for the cited misconduct promoted the efficiency of the
     service; and (4) the penalty of removal was within the tolerable bounds of
     reasonableness. I-3 IAF, Tab 30, Initial Decision (ID) at 2-9. The appellant has
     timely petitioned for review. Petition for Review (PFR) File, Tab 1. He asserts,
     inter alia, that the administrative judge improperly sustained the lack of candor
     charge because the agency failed to prove the element of deception necessary for
     the charge. Id. at 5-7. He also asserts that the agency failed to prove that he had
     knowledge that the document he submitted was altered.         Id. at 7.   In further
                                                                                           4

     support of his assertion that the administrative judge erred in sustaining the
     charges, the appellant challenges the thoroughness and competence of the
     agency’s investigation. Id. at 6-7, 14. The appellant additionally asserts that the
     administrative judge failed to address his affirmative defense of EEO retaliation.
     Id. at 8-9.     Finally, the appellant challenges the penalty determination. 3
     Id. at 9-15. The agency has responded in opposition to the petition for review.
     PFR File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge properly sustained the charge that the appellant
     provided an altered email to support his assertion that he applied for a promotion.
¶6         As noted above, the administrative judge found that the agency had shown
     by preponderant evidence that the appellant submitted an altered email under the
     guise of an authentic email in support of his contention that he had applied for a
     promotion. ID at 5. On review, the appellant argues that the agency failed to
     prove that he had knowledge that the document he submitted was altered. PFR
     File, Tab 1 at 7.       For the reasons discussed below, we agree with the
     administrative judge that the agency proved the charge.
¶7         We find that the agency’s charge of providing an altered email is essentially
     a charge of falsification. To establish a charge of falsification, the agency must
     prove by preponderant evidence that the appellant:               (1) supplied wrong
     information; and (2) knowingly did so with the intention of (a) defrauding,
     deceiving, or misleading the agency, and (b) defrauding the agency for his own




     3
        The appellant asserts that the agency failed to conduct a nationwide search for
     comparators. PFR File, Tab 1 at 12-13. We find that this bare assertion is insufficient
     to state a claim of disparate penalties. See Lewis v. Department of Veterans Affairs,
     111 M.S.P.R. 388, ¶ 8 (2009) (holding that an agency’s obligation to justify different
     treatment is triggered where an employee has raised an allegation of disparate penalties
     in comparison to specified employees).
                                                                                         5

     personal gain. 4 Parker v. Department of Veterans Affairs, 122 M.S.P.R. 353, ¶ 10
     (2015) (citing Haebe v. Department of Justice, 288 F.3d 1288, 1305 (Fed. Cir.
     2002)).
¶8         In sustaining the charge, the administrative judge relied, in part, on the
     testimony of agency witnesses, which he determined was more credible than the
     testimony of the appellant’s witnesses. ID at 5. Specifically, the administrative
     judge credited the testimony of the Chief of Skills Development, who participated
     in the inquiry that led to the appellant’s removal, that the appellant provided the
     agency with an acknowledgement letter to support consideration for a promotion
     and that, based upon review by the Office of Personnel Management (OPM) and
     the agency, this letter was determined to have been altered. ID at 2-3, 5. The
     administrative judge found that this testimony was credible because the Chief of
     Skills Development testified in a direct and straightforward manner, was sure of
     his facts, appeared truthful in his responses, and testified consistently on direct
     and cross-examination. ID at 5. The administrative judge further credited the
     testimony of an OPM Human Resources (HR) Specialist that the email that the
     appellant submitted was not generated by OPM. ID at 4. The administrative
     judge also found the OPM HR Specialist’s testimony to be persuasive because she
     made an effort to understand questions, the testimony was consistent and direct,
     and she explained in detail why she believed the email had been altered. ID at 6.
     Similarly, the administrative judge found that an OPM supervisor persuasively
     testified in a consistent, direct, and straightforward manner that a search of the
     agency’s records during the relevant time period reflected that the appellant never
     completed an application for the position in question. ID at 4, 6.
¶9         The administrative judge considered the testimony of the appellant’s
     witnesses in support of his assertion that he had applied for the position and that


     4
      A preponderance of the evidence is that 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. 5 C.F.R. § 1201.4(q).
                                                                                       6

      the email was authentic, but found that this testimony did not support the
      appellant’s assertion.   ID at 5-6.   Specifically, the administrative judge found
      that, although a former agency employee, D.C., had signed a statement that she
      personally had confirmed receipt of the appellant’s application for the position,
      D.C. testified at the hearing that another employee had actually obtained this
      information for her. ID at 6. The administrative judge noted S.M., the other
      employee identified by D.C., did not recall obtaining that information or D.C.
      asking her to do so. Id. The administrative judge also noted that the supervisory
      HR Specialist who supervised both D.C. and S.M. testified that neither she nor
      any of her staff could access applications in the Southwest Region, where the
      position in question was located. Id. The administrative judge found that this
      testimony was credible because it was direct and straightforward.         Id.   He
      therefore gave this testimony greater weight than that of D.C. Id.
¶10         The Board will not disturb an administrative judge’s findings when he
      considered the evidence as a whole, drew appropriate inferences, and made
      reasoned conclusions on issues of credibility. See Broughton v. Department of
      Health & Human Services, 33 M.S.P.R. 357, 359 (1987). More specifically, when
      a hearing was held, the Board will defer to the credibility determinations of an
      administrative judge when they are based, explicitly or implicitly, upon the
      observation of the demeanor of witnesses testifying at a hearing, because the
      administrative judge is in the best position to observe the demeanor of the
      witnesses and determine which witnesses were testifying credibly. Haebe, 288
      F.3d at 1300-01.     Here, we defer to the administrative judge’s credibility
      determinations because they are explicitly based on the demeanor of the witnesses
      at the hearing.
¶11         Because he found that the agency’s witnesses were more persuasive, the
      administrative judge concluded that preponderant evidence supported the
      agency’s charge that the appellant provided an altered email to support his
                                                                                            7

      assertion that he applied, but failed to receive consideration, for the position. ID
      at 6. We agree that preponderant evidence supports the charge.
¶12            The appellant argues that the agency failed to prove that he knew the
      document he submitted was altered. PFR File, Tab 1 at 7. The intent to defraud
      may be established by circumstantial evidence. Parker, 122 M.S.P.R. 353, ¶ 10.
      Therefore, the Board may consider plausible explanations for why an appellant
      provided incorrect information. Scheffler v. Department of Army, 117 M.S.P.R.
      499, ¶ 4 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). Likewise, the absence
      of   a    credible explanation   for   the   incorrect   information    can   constitute
      circumstantial evidence of intent to deceive. Id.
¶13            Here, the administrative judge found, and we agree, that the appellant
      provided no evidence or explanation to support his contention that he did not
      know that the document he submitted was altered. See ID at 6. Our review of the
      discrepancies between the acknowledgment letter submitted by the appellant and
      the acknowledgment letter received by other applicants for the same position
      further supports our finding. See I-3 IAF, Tab 28 at 23-24, 32-33. The altered
      document is similar to an acknowledgment letter that the appellant received on
      Friday, September 28, 2012, for another position. See id. at 18-19. In addition,
      although both acknowledgment letters state they were sent on a Friday, the
      document the appellant submitted states that it was sent on September 29, 2012—
      a day after the other acknowledgment letter.        Id. at 18-19, 32.    Although the
      appellant could have submitted an original dated email of the acknowledgment
      letter that he alleged to have received, which would have supported his assertion
      that he did not falsify it, he instead submitted copies of the acknowledgment
      letter in the context of a reply and forwarded email. See, e.g., id. at 32-33. Thus,
      we find that the evidence does not support the appellant’s assertion that he did
      not have knowledge that the email he sent was altered. We find that the elements
      of falsification are met here because the administrative judge found, and we
      agree, that the appellant knowingly supplied wrong information in the form of the
                                                                                             8

      altered document with the intent to defraud the agency for his own personal gain
      in   the   form    of   obtaining    consideration    for   the   promotion. 5       See
      Parker, 122 M.S.P.R. 353, ¶¶ 10, 16. We therefore find that the administrative
      judge properly sustained the first charge. See Scheffler, 117 M.S.P.R. 499, ¶¶ 7-8
      (determining that the appellant’s false statements were knowing and intentional
      rather than the result of an honest mistake, despite his claim that he could have
      honestly but erroneously relied on an altered document).
      The administrative judge properly sustained the lack of candor charge.
¶14         As noted above, the administrative judge concluded that the agency showed
      by preponderant evidence that the appellant lacked candor when he claimed that
      the altered email was the result of a computer glitch. ID at 7-8. The appellant
      asserts that the administrative judge improperly sustained the lack of candor
      charge. PFR File, Tab 1 at 5-7 (citing Ludlum v. Department of Justice, 278 F.3d
      1280, 1284 (Fed. Cir. 2002)). For the reasons discussed below, we agree with the
      administrative judge that the agency also has proved the lack of candor charge.
¶15         While falsification involves an affirmative misrepresentation, lack of
      candor is a broader and more flexible concept. Ludlum, 278 F.3d at 1284. Its
      contours and elements depend upon the particular context and conduct involved.
      Id. When an underlying misconduct charge has been proven, a lack of candor
      charge also must be sustained on the basis of the appellant’s failure to respond
      truthfully or completely when questioned about matters relating to the proven
      misconduct. Id. (quoting Gootee v. Veterans Administration, 36 M.S.P.R. 526,
      529 (1988)).
¶16         The administrative judge credited the affidavit of a former agency employee
      and the testimony of the inquiry officer that the appellant stated that a computer


      5
        The administrative judge did not specify whether he considered the charge under a
      falsification standard or a lack of candor standard. See ID at 2-6. However, because we
      sustain the charge based upon the higher standard of falsification, any confusion in this
      respect is harmless.
                                                                                           9

      glitch caused the discrepancy between his acknowledgment letter and that of
      other applicants. ID at 7; see I-3 IAF, Tab 5 at 65. The administrative judge
      found that the appellant did not dispute making these statements. ID at 7. He
      further found that the appellant’s claim that the discrepancy was caused by a
      computer glitch was undermined by the credible testimony of agency witnesses
      and the fact that there was no evidence that the appellant even completed an
      application for the position in question. Id. We see no reason to disturb these
      findings. 6
¶17         The appellant, however, asserts that the administrative judge improperly
      sustained the lack of candor charge because the agency failed to prove the
      element of deception necessary for this charge. PFR File, Tab 1 at 5-7 (citing
      Ludlum, 278, F.3d at 1284). We disagree. In Ludlum, the U.S. Court of Appeals
      for the Federal Circuit stated, “Although lack of candor necessarily involves an
      element of deception, ‘intent to deceive’ is not a separate element of that
      offense—as it is for ‘falsification.’”      Id. at 1284-85.      We agree with the
      administrative   judge   that   the   appellant   knew   the   discrepancies   in   his
      acknowledgment letter were not caused by a computer glitch, but nevertheless
      stated that the glitch had caused the discrepancies. See ID at 5-7. Therefore, the
      appellant’s statements concerning the computer glitch contained an element of
      deception.    See Rhee v. Department of the Treasury, 117 M.S.P.R. 640, ¶ 10
      (2012) (finding that Ludlum requires the agency to produce some evidence that
      the appellant’s actions, under the circumstances, involved an element of
      deception), overruled on other grounds by Savage v. Department of the
      Army, 122 M.S.P.R. 612 (2015). Additionally, as previously discussed, in cases

      6
        The administrative judge found that the record also supported the conclusion that the
      appellant knowingly supplied incorrect information with the intention of deceiving the
      agency. ID at 7-8 (citing Prather v. Department of Justice, 117 M.S.P.R. 137, ¶ 17
      (2011)). Because we find that the agency proved the charge of lack of candor, we need
      not address this finding to the extent that it was intended as an additional finding of
      falsification.
                                                                                            10

      such as this one, where an underlying misconduct charge has been proven, a lack
      of candor charge also must be sustained based on the appellant’s failure to
      respond truthfully when questioned about matters relating to the proven
      misconduct.       Ludlum, 278 F.3d at 1284.         Accordingly, we find that the
      administrative judge properly sustained the lack of candor charge. 7 See Little v.
      Department of Transportation, 112 M.S.P.R. 224, ¶ 20 (2009) (finding that the
      agency proved the appellant’s lack of candor during an investigation where the
      Board sustained the charge for the misconduct that was the subject of the
      investigation).
      The agency established nexus.
¶18         The administrative judge found that the agency’s disciplinary action
      promoted the efficiency of the service. ID at 8. The appellant has not challenged
      this finding on review, and we see no reason to disturb it because removal for
      falsification of documents has consistently been found to be for such cause as will
      promote the efficiency of the service.       See, e.g., Trybul v. Department of the
      Army, 22 M.S.P.R. 290, 292 (1984), aff’d, 776 F.2d 1059 (Fed. Cir. 1985)
      (Table).
      It is necessary to remand the appeal for further adjudication of the appellant’s
      EEO retaliation claim.
¶19         When an appellant raises an affirmative defense in an appeal either by
      checking the appropriate box in an appeal form, identifying an affirmative
      defense by name, or by alleging facts that reasonably raise such an affirmative
      defense, the administrative judge must address the affirmative defense in any
      close of record order or prehearing conference summary and order. Gath v. U.S.

      7
        The appellant challenges the agency’s investigation of the charges. PFR File, Tab 1
      at 6-7, 14. The Board has held that an agency does not have a duty to investigate the
      appellant’s misconduct before proposing his removal, but only to make reasonable
      inquiries into exonerating facts brought to its attention by an appellant before removing
      him. Uske v. U.S. Postal Service, 60 M.S.P.R. 544, 550 (1994), aff’d, 56 F.3d 1375
      (Fed. Cir. 1995). Therefore, the thoroughness or lack of thoroughness of the agency’s
      investigation is not a proper basis for not sustaining the agency’s charges. Id.
                                                                                      11

      Postal Service, 118 M.S.P.R. 124, ¶ 11 (2012). Even if an appellant expresses the
      intention to withdraw such an affirmative defense, the administrative judge must,
      at a minimum, in the close of record order or prehearing conference summary and
      order, identify the affirmative defense, explain that the Board will no longer
      consider it when deciding the appeal, and give the appellant an opportunity to
      object to the withdrawal of the affirmative defense. Id.
¶20        Here, the appellant asserted in his initial appeal that the agency committed a
      prohibited personnel practice under 5 U.S.C. § 2302(b)(1) when it proposed his
      removal and issued a removal decision in retaliation for his involvement in
      protected activity. I-1 IAF, Tab 1. The appellant was not informed of his burden
      for establishing the affirmative defense.     The administrative judge issued a
      prehearing conference summary, in which he stated that the appellant was not
      asserting any affirmative defenses, but it did not state that the appellant had
      abandoned his affirmative defense of EEO retaliation.      I-3 IAF, Tab 19 at 1.
      Although he was given an opportunity to respond to the summary, id. at 3, the
      appellant, who was represented by counsel, failed to do so. The initial decision
      did not address his affirmative defense.    See ID.   On petition for review, the
      appellant now asserts that the administrative judge failed to adjudicate his claim
      of EEO retaliation.   PFR File, Tab 1 at 8-9.      Accordingly, we find that the
      administrative judge did not give the appellant proper notice regarding his
      affirmative defense and it thus is necessary to remand the appeal for further
      adjudication of the affirmative defense. See Gath, 118 M.S.P.R. 124, ¶ 12.
¶21        Because an adverse action is sustainable only if the appellant cannot
      establish his affirmative defenses, we vacate the administrative judge’s initial
      decision sustaining his removal and remand the appeal for further development of
      the record on the appellant’s affirmative defense of EEO retaliation. See, e.g.,
      Viana v. Department of the Treasury, 114 M.S.P.R. 659, ¶ 8 (2010). If, after
      remand, the administrative judge denies the appellant’s affirmative defense, he
                                                                                   12

      may readopt the previous findings concerning the agency’s charges and the
      reasonableness of the penalty. Id.

                                           ORDER
¶22        For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.




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