                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CHARLES DERECK ADAMS,                            DOCKET NUMBER
                  Appellant,                          DC-3443-10-0711-B-1

                  v.

     DEPARTMENT OF DEFENSE,                           DATE: July 14, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Charles Dereck Adams, Herndon, Virginia, pro se.

           James J. Delduco, Esquire, Redstone Arsenal, Alabama, 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 remand initial decision,
     which affirmed the agency’s decision denying him early retirement under its
     Voluntary Early Retirement Authority (VERA).            Generally, we grant petitions

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
     Notwithstanding the appellant’s urging that the decision in his case should be
     precedential, Petition for Review File, Tab 3 at 20, it is the Board’s determination that
     it does not fit into that category of issuance.
                                                                                         2

     such as this one only when: the initial decision contains erroneous findings of
     material fact; the initial decision is based on an erroneous interpretation of statute
     or regulation or the erroneous application of the law to the facts of the case; the
     administrative judge’s rulings during either the course of the appeal or the initial
     decision were not consistent with required procedures or involved an abuse of
     discretion, and the resulting error affected the outcome of the case; or new and
     material evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. See title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).          Therefore, we
     DENY the petition for review. Except as expressly MODIFIED by this Final
     Order to apply the proper burden of proof to the appellant’s claim of
     discrimination, we AFFIRM the remand initial decision.
¶2         The appellant was a GS-15 Information Technology Specialist with the
     agency’s Missile Defense Agency (MDA).             He was indefinitely suspended
     continuously from June 15, 2009, based on his loss of access to classified
     information. The action was upheld on appeal, the Board denied the appellant’s
     petition for review of that decision, and the U.S. Court of Appeals for the Federal
     Circuit (Federal Circuit) affirmed the Board’s decision. Adams v. Department of
     Defense, 371 F. App’x 93 (Fed. Cir. 2010). The appellant was removed effective
     June 29, 2010, for failure to maintain a security clearance with access to Sensitive
     Compartmented Information, necessary to perform the duties of his position.
     That action too was upheld on appeal. On April 20, 2010, the appellant submitted
     an application for immediate retirement, which the agency denied because he did
     not meet the requirements for such. The appellant filed an appeal in which he
     alleged that the agency improperly denied his request for early retirement under
     VERA and that the denial was the result of retaliation and discrimination. The
     administrative judge dismissed the appeal for lack of jurisdiction.       The Board
     joined for adjudication the appellant’s petitions for review of these two decisions,
     denying both petitions.    Adams v. Department of Defense, MSPB Docket No.
                                                                                    3

     DC-3443-10-0711-I-1, Final Order (March 4, 2011).          The Federal Circuit
     affirmed the Board’s decision as to the appellant’s removal, Adams v. Department
     of Defense, 688 F.3d 1330, 1334 (Fed. Cir. 2012), but found that the agency’s
     decision regarding his retirement under VERA was reviewable by the Board,
     which had jurisdiction over it as an adverse retirement decision, and the court
     remanded that matter for further proceedings, id. at 1336.      The Board then
     remanded the VERA appeal to the regional office for adjudication.      Adams v.
     Department of Defense, MSPB Docket No. DC-3443-10-0711-M-1, Final Order
     at 1, 6 (Aug. 27, 2013).
¶3        Following the requested hearing, Remand Appeal File (RAF), Tab 295, the
     administrative judge issued a remand initial decision affirming the agency’s
     decision, RAF, Tab 296, Remand Initial Decision (RID) at 1, 24. She first found
     it undisputed that the agency had the authority pursuant to 5 U.S.C. § 9902(f) to
     authorize early retirement through utilization of the VERA program to reduce or
     restructure the MDA’s workforce and that the program was a management-based
     action and not an employee entitlement. RID at 5. She then considered testimony
     from the Director of Human Resources regarding the program and how it worked.
     Specifically, managers were to identify positions within their organization that
     would be appropriate for VERA, and then complete a form to demonstrate how a
     particular position was appropriate for VERA; that is, that it would be downsized
     or how it would be restructured. The agency was not downsizing at the time in
     question, but VERA offers were considered for positions that were in the process
     of being restructured, as some positions were being moved out of state.     RID
     at 5-6. Managers would submit their forms to the Human Resources office, which
     would analyze the requests and then forward them to the MDA Director for
     decision. If the MDA Director approved the request, the Human Resources office
     then would look at the incumbent of the position to see if he or she met the
     requirements for a VERA by being at least 50 years old with 20 years of service.
     5 U.S.C. § 9902(f)(4). In sum, a VERA offer would be made to an employee if,
                                                                                         4

     first, his or her position was identified and determined to be eligible for
     restructuring and, second, he or she met the VERA eligibility criteria. RID at 7.
¶4        The administrative judge considered the appellant’s assertion that the
     agency offered him a VERA, both as part of a settlement offer and as a general
     offer made to some or all of employees in his directorate. The administrative
     judge first addressed the appellant’s claim that the agency offered him an early
     retirement under VERA as part of a settlement offer to resolve pending
     complaints before the Equal Employment Opportunity Commission and the
     Board. She found it well settled, however, that settlement offers and settlement
     negotiations may not be considered as evidence in the adjudication of appeals, see
     Cheng v. Department of Agriculture, 84 M.S.P.R. 144, ¶ 5 (1999), and that
     therefore the Board could not consider any such evidence. 2 RID at 7-8.
¶5        The administrative judge then addressed the appellant’s claim that the
     agency offered him a VERA in 2006 when it allegedly made specific such offers
     to employees in his division, but then rescinded the offer. The administrative
     judge considered the agency’s assertion that the appellant’s claim is barred by the
     equitable doctrine of laches and his contrary assertion that he raised this claim
     early on in these proceedings.     After examining the voluminous record, the
     administrative judge found no evidence that the appellant raised an allegation
     regarding a purported VERA offer made to him by the agency in 2006 until a
     conference call held during this remand proceeding on October 19, 2015, and that
     therefore the appellant’s allegation was, in fact, barred by laches.      Mercer v.
     Department of Health & Human Services, 82 M.S.P.R. 211, ¶ 10 (1999) (finding
     that laches bars an action when an unreasonable delay in bringing the action has
     prejudiced the party against whom the action is taken); RID at 9-14. Nonetheless,
     in an effort to fully resolve the issues in the appeal, the administrative judge


     2
      The administrative judge issued an order to this effect during adjudication below.
     RAF, Tab 88 at 9-11.
                                                                                     5

     assumed arguendo that the appellant’s claim was not barred by laches and she
     considered it.
¶6         The administrative judge found that, while it was undisputed that the
     appellant would have met the age and service requirements for a VERA, he failed
     to show that the agency identified his position as eligible for downsizing or
     restructuring and that it had been approved for a VERA. RID at 15. In support of
     her finding, the administrative judge relied upon the appellant’s supervisor and
     the then-Deputy of Human Resources, both of whom testified that the appellant’s
     position was not identified as VERA eligible and that no offers were made to
     groups of employees within his directorate in 2006.         RID at 15-16.     The
     administrative judge found that the appellant’s testimony regarding the alleged
     VERA offer was not credible because of the lack of any supporting
     documentation, statements he made during the prehearing conference that
     rendered his current claim “patently unreasonable,” RID at 16-17, answers he
     made in discovery that were equivocal as to whether, in fact, the agency made
     him a VERA offer, RID at 17-18, testimony he provided at the hearing that
     rendered his argument “not reasonable,” RID at 19-20, and the testimony of his
     supervisor that contradicted his claim that he actually received a VERA offer in
     2006, RID at 20. The administrative judge concluded that the appellant offered
     no credible evidence or argument that the agency offered him a VERA in 2006
     and that he timely accepted such an offer, and that, while the court held that the
     Board has jurisdiction over the agency’s decision to deny his requests for a
     VERA, he failed to establish that he met the requirements for a VERA offer
     because there was no evidence that his position was ever identified and approved
     for restructuring and thus the requirements for an early retirement under VERA
     were not met. RID at 21-22.
¶7         Finally, the administrative judge considered the appellant’s claim that the
     agency’s decision to deny his request for early retirement under VERA was based
     on prohibited discrimination based on age (54 years old at the time of his 2010
                                                                                       6

removal), gender, and race (African American). 3 She determined that he alleged
discrimination based on disparate treatment and disparate impact.           RID at 22.
She found, however, that he offered nothing to show that only employees outside
his protected groups were offered a VERA and that, in contrast, the agency
produced statistical evidence that controverted his claim. 4            Therefore, the
administrative judge found no showing that the agency discriminated against the
appellant based on his age, gender, or race, and that, in any event, because
preponderant evidence established that his position was never found eligible for a
VERA offer, he did not meet a critical requirement for VERA eligibility, and so
did not prove his disparate treatment claim. RID at 23-24. The administrative
judge further found that the appellant offered no evidence or argument that the
agency’s identification of positions eligible for a VERA had a disparate impact on
certain groups of employees and that his conclusory allegations were insufficient
to meet his burden of proof as to that allegation. RID at 24.



3
  The administrative judge noted that the appellant had initially raised an allegation of
retaliation but she found that, at the prehearing conference, he provided no evidence or
argument regarding this claim, and she therefore determined that no additional evidence
on it would be considered at the hearing. RAF, Tab 259 at 7 n.3. The appellant failed
to object to the administrative judge’s summary of the prehearing conference, which did
not include the issue of retaliation. In the remand initial decision, the administrative
judge found that the appellant presented no evidence or argument on the retaliation
claim at the hearing and that she therefore did not consider it further. RID at 4 n.5. To
the extent that, on review, the appellant generally attempts to raise the issue of
retaliation, PFR File, Tab 3 at 6, we have not considered it. Cf. Miller v. U.S. Postal
Service, 117 M.S.P.R. 557, ¶ 7 (2012) (explaining that failure of party to object to
administrative judge’s ruling excluding evidence during proceeding below precluded
party from challenging ruling on review).
4
  Specifically, that evidence showed that no VERA actions were approved in 2005; that,
from 2006-2008, the agency approved seven VERA actions, three for males and four for
females, three for African Americans and four for Caucasians, and for employees who
ranged in age from 48-59; and that, from 2008-2010, the agency granted VERA
retirements to six employees, five females and one male, three African Americans and
three Caucasians, and to employees who ranged in age from 47-57. RAF, Tab 256,
Agency Exhibit 5.
                                                                                            7

¶8         The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 3, and several supplements thereto, PFR File, Tabs 4-8. The agency has
     responded in opposition, PFR File, Tab 11, and the appellant has filed several
     replies to the agency’s response, PFR File, Tabs 15-18. 5
¶9         Before we address the appellant’s specific claims on review, we reiterate
     the court’s finding that his claim for early retirement was denied by the agency
     and that the denial significantly affected his rights or interests under 5 U.S.C.
     § 8461 of the Federal Employees’ Retirement System, thereby establishing Board
     jurisdiction. Adams, 688 F.3d at 1335. Although the administrative judge found,
     and we agree, that the record fails to show that the appellant’s position was ever
     identified as appropriate for a VERA and that, absent such a determination, no
     VERA offer could have been made to him, RID at 21, we concur with the
     administrative judge’s implicit acknowledgment that we are bound by the court’s
     finding. RID at 21-22. As did the administrative judge, we therefore construe the
     agency’s failure to identify the appellant’s position as VERA appropriate as its
     decision. Further, we agree that the appellant failed to establish that he met the
     requirements for a VERA offer because there is no evidence that his position was
     ever identified and approved for restructuring such that the requirements for an
     early retirement under VERA were not met.               Having reviewed all of the

     5
       On July 11, 2016, the appellant filed four additional pleadings with the Clerk of the
     Board. PFR File, Tabs 21-24. Concerning Tabs 21 and 22, because the record in this
     matter already had closed upon the expiration of the period for filing the reply to the
     response to the petition for review, see 5 C.F.R. § 1201.114(k), and because the
     appellant did not comply with the Board’s regulation that required him to file a motion
     to obtain leave to submit an additional pleading, see 5 C.F.R. § 1201.114(a)(5), we have
     not considered these pleadings on review. Concerning Tab 23, although the appellant
     did request leave to file an additional pleading, the subject matter of his pleading does
     not contain new evidence or argument and, therefore, we have not considered this
     pleading on review. See 5 C.F.R. § 1201.114(a)(5). Concerning Tab 24, although the
     appellant similarly requested leave to file an additional pleading, he simply requests to
     submit pleadings into the record that already are contained in the record. PFR File,
     Tabs 15-18. Accordingly, we have not considered this pleading. See 5 C.F.R.
     § 1201.114(a)(5).
                                                                                     8

      appellant’s arguments and submissions on review, we discern no reason to
      reweigh the evidence or substitute our assessment of the record evidence for that
      of the administrative judge.   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 Haebe v. Department of Justice, 288 F.3d 1288,
      1302 (Fed. Cir. 2002) (holding that the Board may overturn credibility
      determinations only when it has “sufficiently sound” reasons for doing so).
¶10         The appellant argues on review that the agency knowingly withheld relevant
      evidence in its possession, specifically, his “unclassified profile or H: Drive.”
      PFR File, Tab 3 at 4. According to the appellant, the drive contains notes and
      documentation, specifically, an email in which the agency allegedly offered him a
      VERA, and he argues that, despite his multiple requests, the administrative judge
      refused to compel the agency to produce the drive. Id. at 5. He contends that,
      without it, he was unable to prove his claims of disparate treatment or
      discrimination. Id. at 6.
¶11         The appellant requested a “complete Uncensored Unclassified Profile or H:
      drive” from his work computer during the proceeding below. RAF, Tab 91 at 7.
      Although the administrative judge denied the request during a conference call,
      she inquired of the appellant what documentation he was seeking, and he
      indicated that it was emails between him and certain agency employees regarding
      the agency’s early VERA offers and his request for a VERA, as well as
      documentation referencing his disparate treatment allegation. Over the agency’s
      objection, the administrative judge ordered the agency to review the appellant’s
      hard drive or relevant copies or backups of his hard drive and provide copies of
      any emails between him and any of seven named agency officials from the time
      the agency first got VERA authority until the appellant’s removal from Federal
      service.   RAF, Tab 99 at 6-7.         The appellant repeatedly expressed his
      dissatisfaction with the administrative judge’s ruling, indicating his preference
                                                                                           9

      and need for access to the entire drive. RAF, Tabs 103, 117, 127, 134. He filed a
      motion to compel, RAF, Tab 153, but the administrative judge denied it as
      incomplete under 5 C.F.R. § 1201.73(c), and also as premature, to the extent that
      it pertained to supplemental discovery requests the appellant had filed, RAF,
      Tab 154.
¶12         Administrative judges have broad discretion in regulating discovery and,
      absent a showing of abuse of such discretion, the Board will not find reversible
      error. Vores v. Department of the Army, 109 M.S.P.R. 191, ¶ 14 (2008), aff’d,
      324 F. App’x 883 (Fed. Cir. 2009).         Here, the administrative judge’s ruling
      ordering the agency to review the drive and provide the appellant any pertinent
      emails on the VERA issue was reasonable, as was the agency’s response. Based
      on our review of the record in this case, we find that the administrative judge did
      not abuse her discretion regarding the appellant’s request for his H: drive. 6
      Moreover, there is no indication that the appellant ever resubmitted his motion to
      compel as it relates to the information on his H: drive.
¶13         The appellant asserts that the administrative judge was biased against him.
      PFR File, Tab 3 at 9. He lists 33 such examples, including her refusal to order
      the agency to provide him his H: drive, her “voice, tone, and how she worded
      things,” her discovery orders and other processing orders and her witness and
      evidentiary rulings that were adverse to him, her denial of his motions, her refusal
      to allow opening statements, her issuing the initial decision too soon after the
      close of the record, and, in general, her ruling against him. Id. at 10-19.
¶14         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) (quoting Liteky v. United States, 510 U.S. 540, 555
      6
       Therefore, to the extent the appellant is renewing his motion to compel the production
      of the contents of his H: drive on review, we DENY the motion.
                                                                                           10

      (1994)). Further, 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). The appellant’s complaints about
      the administrative judge’s conduct in the adjudication of his appeal do not
      evidence anything that would make fair judgment impossible and are insufficient
      to overcome the presumption of honesty and integrity that accompanies
      administrative adjudicators. 7 Young v. U.S. Postal Service, 115 M.S.P.R. 424,
      ¶ 19 (2010).
¶15         The appellant generally disagrees with and loosely challenges the
      administrative judge’s finding that he did not establish disparate treatment based
      on age, gender, and race. PFR File, Tab 3 at 10. In Savage v. Department of the
      Army, 122 M.S.P.R. 612, ¶ 51 (2015), issued prior to the initial decision in this
      case, the Board modified the test for establishing discrimination, holding that,
      when an appellant asserts such an affirmative defense, the Board first will inquire
      whether the appellant has shown by preponderant evidence that the prohibited
      consideration was a motivating factor in the contested matter.           Although the
      agency acknowledged that it did approve various VERA actions during the period
      in question for certain employees, such evidence does not prove discrimination
      and we find under the Savage test that the appellant failed to show that any
      prohibited consideration was a motivating factor in the agency’s decision
      regarding his VERA. Therefore, we find that his substantive rights have not been
      prejudiced by the administrative judge’s application of McDonnell Douglas Corp.
      v. Green, 411 U.S. 792, 802 (1973), the previously approved method of proving a



      7
        With his petition and in his supplements thereto, the appellant has submitted numerous
      documents that are a part of the record below. PFR File, Tab 3 at 26-59, Tabs 4-8.
      Evidence that is already a part of the record is not new. Meier v. Department of the
      Interior, 3 M.S.P.R. 247, 256 (1980).
                                                                               11

discrimination claim. Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984).

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You 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.
                                                                                   12

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
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:                             ______________________________
                                           Jennifer Everling
                                           Acting Clerk of the Board
Washington, D.C.
