                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JASON G. PETERS,                                DOCKET NUMBER
                   Appellant,                        SF-0752-15-0751-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: January 6, 2017
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Shaun C. Southworth, Esquire, Atlanta, Georgia, for the appellant.

           Kevin D. Mack, Esquire, Sacramento, California, 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
     sustained his removal. Generally, we grant petitions 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse of discretion,
     and the resulting error affected the outcome of the case; or new and material
     evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed.         Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).              After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         The agency removed the appellant from the GS-11 Senior Law Enforcement
     Ranger position effective September 22, 2014, based on the charges of lack of
     candor (four specifications) and conduct unbecoming a law enforcement officer
     (one specification).   Initial Appeal File (IAF), Tab 3, Subtabs 4b-4c, 4h.        The
     specifications of charge 1 came to light as a result of the appellant’s statements
     during the November 2013 investigation of the Chariot Wildland Fire by the
     agency’s Office of Professional Responsibility (OPR). That fire started on July 6,
     2013, on Bureau of Land Management-managed lands and then spread to private
     and National Forest Service lands, burning roughly 7050 acres, destroying
     149 structures, and causing about $11 million in damage. IAF, Tab 3, Subtab 4h.
     The appellant was one of the first individuals to report the fire.            Hearing
     Testimony (HT) (testimony of the deciding official) (Mar. 29, 2016, at 1-20, 41).
¶3         On the day that the fire started, the appellant was operating a
     law-enforcement vehicle, a Jeep Rubicon, that caught fire and burned at the
     Butterfield Ranch campground, a location about 2 miles from the point of origin
     of the fire. Id. In the report of his actions after spotting the fire, the appellant
     stated that “at 12:50” he “entered the area to search for any suspects whom may
     have started the fire. I drove to an area where a ‘Y’ intersection is. . . . I took the
     right route.”   IAF, Tab 3, Subtab 4i.       Subsequently, in the November 2013
                                                                                            3

     interview by OPR, the appellant initially repeated that at the Y he took the right
     route. However, as the interview progressed, he stated that he had earlier been at
     the Y and took the left route, which led into the area of the origin of the fire. He
     stated that he was in that general fire burn area between approximately 12:00 p.m.
     and 12:28 p.m.    Id.   The appellant also admitted that he did not report to the
     CalFire investigator during her investigation that began 2 days after the fire, nor
     his supervisor that he had been in the general fire burn area minutes before he
     reported the fire. Id. The appellant further admitted that he did not come forward
     with this information after fire investigators determined that the fire probably was
     vehicle ignited. 2 Id. The OPR report indicated that the appellant’s log entries for
     the date that the fire started indicate that he was patrolling another area , the
     Sawtooth Wilderness Area, from 12:00 p.m. to 12:28 p.m., the time that he
     admitted he was in the general fire burn area. Id.
¶4         Based on the appellant’s admissions during the OPR investigation, the
     agency specified that the appellant lacked candor: (1) when he did not inform his
     supervisor that he had driven in the fire burn area prior to the initiation of the
     fire; (2) when he did not inform the CalFire investigator that he had driven in the
     fire burn area prior to the initiation of the fire; (3) when he did not state in his
     official report about the fire that he had been in the fire burn area prior to the
     initiation of the fire; and (4) when he omitted from his daily patrol log that he had
     driven in the fire burn area prior to the initiation of the fire. The agency specified
     that his failure to provide the CalFire investigator with useful guidance or
     assistance in directing the focus of the initial fire investigation constituted failure



     2
       The appellant maintained during the OPR investigation that the Jeep he was driving
     did not start the fire. However, in the civil actions brought to recover losses caused by
     the fire, the appellant was named as a co-defendant and accused of starting the fire.
     IAF, Tab 3, Subtab 4i. The agency presented no evidence to show that the appellant
     intentionally or negligently caused the fire or violated any laws, rules, or regulations
     during his patrol on July 6, 2013, the date that the fire started.
                                                                                            4

     to cooperate fully, hindering the fire investigation, and was conduct unbecoming
     a Federal law enforcement officer. IAF, Tab 3, Subtab 4h.
¶5         The appellant appealed the agency’s action, denying the misconduct,
     claiming that for a time after his Jeep burned, he suffered post-traumatic stress
     disorder (PTSD) that caused him not to remember that he had driven into the fire
     burn area. He also alleged that the agency failed to provide minimum due process
     because the deciding official engaged in ex parte communications with the
     CalFire investigator that the deciding official relied on in reaching the decision to
     remove the appellant.     Additionally, he claimed that the agency’s action was
     discrimination on the basis of disability, PTSD. 3
¶6         The administrative judge found not credible the appellant’s claim that he
     did not remember that he had been in the general fire area immediately prior to
     the ignition of the Chariot Wildland Fire on July 6, 2013. IAF, Tab 35, Initial
     Decision (ID) at 28.    He thus found that the agency proved that the appellant
     knowingly did not tell his supervisor and the CalFire investigator that he was in
     the fire burn area immediately preceding the Chariot Wildland Fire igniting on
     July 6, 2013. ID at 28-31. The administrative judge also found that the agency
     proved that the appellant knowingly initially did not tell OPR investigators that
     he was in the Chariot Wildland Fire burn area immediately preceding the July 6,
     2013 fire, and that he knowingly failed to state in his official report of the Chariot
     Wildland Fire that he had been in the fire burn area immediately precedi ng the
     fire ignition. ID at 31-32. Additionally, he found that the appellant knowingly
     omitted that he had been in the fire burn area immediately preceding ignition
     from his July 6, 2013 daily log.      ID at 32-33.    Thus, the administrative judge

     3
       In his initial submissions, the appellant also alleged as affirmative defenses that the
     agency’s action constituted discrimination on the basis of sex, including sex
     stereotyping, reprisal for engaging in protected equal employment opportunity activity,
     and reprisal for whistleblowing. IAF, Tab 1. However, at the conclusion of the
     hearing, the appellant withdrew these affirmative defenses. HT (testimony of the
     appellant (March 30, 2016, at 408).
                                                                                        5

     sustained charge 1.    Further, the administrative judge found that the agency
     proved that the appellant failed to provide useful guidance to the CalFire
     investigator, and that by not providing useful assistance, the appellant engaged in
     conduct unbecoming that reflected poor judgment on his part and detracted from
     his reputation. ID at 33-35. Thus, he found that the agency also proved charge 2.
¶7         As to the appellant’s affirmative defenses, the administrative judge found
     that the deciding official’s communication with the CalFire investigator was only
     to ask her what type of report she had wanted about the fire from the appellant,
     i.e., whether there was a particular format for the report.      The administrative
     judge found that this communication was cumulative and did not result in any
     pressure on the deciding official to rule in a particular manner.      ID at 36-37.
     Thus, he found that the appellant failed to establish a due process violation. The
     administrative judge also found that the appellant established that he is an
     individual with a disability, PTSD.      ID at 39.    However, he found that the
     appellant failed to show that he was a qualified individual with a disability in
     July 2013 because his PTSD was not diagnosed until February 26, 2014, and the
     appellant presented no medical evidence that he was symptomatic in July 2013.
     ID at 40. The administrative judge, therefore, found that the appellant failed to
     show that PTSD caused him to provide incomplete information about his
     whereabouts prior to the ignition of the Chariot Wildland Fire on July 6, 2013.
     ID at 41-43.
¶8         Finally, the administrative judge found that the agency established that
     discipline for the proven misconduct promoted the efficiency of the service, and
     that the removal penalty was within the bounds of reasonableness. ID at 43-47.
¶9         In his petition for review, the appellant generally disagrees with the
     findings in the initial decision. He asserts that the agency failed to prove that his
     statements involved an element of deception. Petition for Review (PFR) File,
     Tab 1. He contends that, if he provided inaccurate information, he did so because
     he suffered from PTSD, and the administrative judge erred in finding that the
                                                                                            6

      agency proved lack of candor and conduct unbecoming. He also contends that the
      administrative judge erred in finding that the deciding official’s ex parte
      communication with the CalFire investigator did not deprive the appellant of due
      process. Additionally, he argues that the agency removed him for his lack of
      memory of the events of July 6, 2013, and thus removed him because of his
      PTSD, constituting discrimination on the basis of disability.

                       DISCUSSION OF ARGUMENTS ON REVIEW
      The administrative judge properly found that the agency proved its charges.
¶10         Lack of candor “is a broader and more flexible concept” than falsification.
      Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002).
      However,      although   lack   of   candor    does not    require   an    “affirmative
      misrepresentation,” it “necessarily involves an element of deception.”               Id.
      at 1284-85.     An agency alleging lack of candor must prove the following
      elements: (1) that the employee gave incorrect or incomplete information; and
      (2) that he did so knowingly.            Fargnoli v. Department of Commerce,
      123 M.S.P.R. 330, ¶ 17 (2016).
¶11         As the administrative judge found, it is undisputed that the appellant did not
      inform his supervisor and the CalFire investigator that he had driven in the fire
      burn area prior to the initiation of the fire, and that he did not state in his official
      report about the fire or in his daily log that he had driven in the fire burn area
      prior to the initiation of the fire. Thus, the agency proved prong (1)of the test to
      establish lack of candor for each specification of the lack of condor charge.
¶12         The administrative judge relied on the testimony of the witnesses who
      assisted in the investigations of the Chariot Wildland Fire from various
      perspectives, including to determine whether the Jeep fire was related to the wild
      fire, as well as his observation of the appellant’s demeanor to find t hat the
      appellant was not credible when he testified that he omitted mentioning that he
      had been in the fire burn area from his statements to his supervis or, the CalFire
                                                                                         7

      investigator, and from his reports because of lack of memory. ID at 14-28. In
      support of his finding that the appellant was not credible, the administrative judge
      noted that the appellant’s firm recall of many other events on the day of the fire,
      that credible witnesses established that the appellant made a number of
      inconsistent statements as the various aspects of the investigation progressed, and
      that the appellant appeared nervous and uncomfortable while testifying.          ID
      at 28-29.   The Board must defer to an administrative judge’s credibility
      determinations when they are based, explicitly or implicitly, on observing the
      demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice,
      288 F.3d 1288, 1301 (Fed. Cir. 2002) .      Here, we defer to the administrative
      judge’s finding that the appellant was not credible when he testified that memory
      lapse caused him to fail to report that he had been in the fire burn area on July 6,
      2013. Thus, we agree with the administrative judge that the agency established
      that the appellant omitted this critical information knowingly, and that the agency
      established prong (2) of the test to show lack of candor for each spec ification of
      the lack of candor charge.
¶13        A generic charge such as conduct unbecoming does not require specific
      elements of proof. It is established by proving that the employee committed the
      acts alleged in support of the broad label.        See Canada v. Department of
      Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010).         Here, we agree with the
      administrative judge that the appellant’s 14 years of law enforcement experience
      taught him that he was to cooperate in the fire investigation , and he volunteered
      to assist the CalFire investigator with her investigation. ID at 33. Nonetheless,
      the record shows that the appellant failed to tell the investigator the location of
      the columns of smoke that he observed on the day of the fire, and she testified
      that this hindered her efforts to narrow the possible area to look for the source of
      the fire. ID at 34. We agree with the administrative judge that the appellant’s
      failure to provide effective assistance to a fellow law enforcement officer when
                                                                                        8

      he was able to do so constituted conduct unbecoming that reflected poor judgment
      on his part and detracted from his reputation. ID at 34-35.

      The administrative judge properly found that the appellant was not denied
      due process.
¶14         Pursuant to the U.S. Court of Appeals for the Federal Circuit’s decisions in
      Ward v. U.S. Postal Service, 634 F.3d 1274, 1279–80 (Fed. Cir. 2011), and
      Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed.
      Cir. 1999), a deciding official violates an employee’s due process rights when he
      relies upon new and material ex parte information as a basis for his decisions on
      the merits of a proposed charge or the penalty to be imposed. The Board has held
      that an employee’s due process right to notice extends to ex parte information
      provided to a deciding official, if the information was considered in reaching the
      decision and not previously disclosed to the appellant.       Solis v. Department of
      Justice, 117 M.S.P.R. 458, ¶ 7 (2012). Ward, Stone, and their progeny recognize,
      however, that not all ex parte communications rise to the level of due process
      violations; rather, only ex parte communications that introduce new and material
      information to the deciding official are constitutionally infirm. Id., ¶ 8.
¶15         In Stone, the Federal Circuit identified the following factors to be used to
      determine if ex parte information is new and material: (1) whether the ex parte
      information introduced cumulative, as opposed to new, information; (2) whether
      the employee knew of the information and had an opportunity to respond; and
      (3) whether the communication was of the type likely to result in undue pressure
      on the deciding official to rule in a particular manner. Stone, 179 F.3d at 1377.
      Ultimately, the Board must determine whether the ex parte communication is so
      substantial and so likely to cause prejudice that no employee can fairly be
      required to be subjected to a deprivation of property under such circumstances.
¶16         Here, the deciding official testified that he got in touch with CalFire to
      inquire what sort of report they had requested from the appellant. HT (testimony
      of the deciding official) (March 29, 2016, at 92).       He did not speak with the
                                                                                        9

      investigator assigned to investigate the fire. Id. Rather, he spoke with another
      individual at CalFire to try to understand if there was a standard reporting format
      requested of a party reporting a fire. Id. The deciding official was aware that the
      agency had provided CalFire with the official report of the fire prepared for the
      agency by the appellant. Id. The deciding official testified that this information
      did not help him with his decision. Id. at 93. All he learned from CalFire was
      that there was not a standard reporting format. Id. at 95.
¶17        We agree with the administrative judge that the information that the
      deciding official received from CalFire was merely cumulative. Stone, 179 F.3d
      at 1377. The deciding official did not get the information from the investigator
      assigned to the Chariot Wildland Fire.        Thus, there was no risk that the
      conversation would result in comments to the deciding official about the
      appellant’s involvement in her investigation.       Further, the deciding official
      was not asking about the content of the appellant’s witness statement to the
      investigator, only its format, and he learned that there was no standard format.
      He knew that the appellant had made a statement to CalFire, and he just did not
      know the format of the statement. In any event, the deciding official had the
      appellant’s official report of the Chariot Wildland Fire as did CalFire. We find
      no reason to doubt the deciding official’s testimony that he did not rely on his
      contact with CalFire during the decision-making process, and the contact did not
      provide a basis for his decision on the merits of a proposed charge or the penalty
      to be imposed.

      The administrative judge properly found that the appellant failed to prove that the
      agency discriminated against him on the basis of disability.
¶18        As a Federal employee, the appellant’s disability discrimination claim
      arises under the Rehabilitation Act of 1973.     However, the Equal Employment
      Opportunity Commission (EEOC) regulations implementing the Americans with
      Disabilities Act (ADA), as amended by the ADA Amendments Act (ADAAA),
      have been incorporated by reference into the Rehabilitation Act, and the Board
                                                                                       10

      applies them to determine whether there has been a Rehabilitation Act violation.
      Pinegar v. Federal Election Commission, 105 M.S.P.R. 677, ¶ 36 n.3 (2007);
      29 C.F.R. § 1614.203(b). Those regulations are found at 29 C.F.R. part 1630.
¶19        To prove disability discrimination, the appellant first must establish that he
      is an individual with a disability as that term is defined in the ADAAA and the
      EEOC regulations.     See, e.g., Doe v. Pension Benefit Guaranty Corporation,
      117 M.S.P.R. 579, ¶ 38 (2012). The appellant may prove that he has a disability
      by showing that: (1) he has a physical or mental impairment that substantially
      limits one or more major life activities; (2) he has a record of such impairment; or
      (3) he is regarded as having such an impairment. 42 U.S.C. § 12102(1); 29 C.F.R.
      § 1630.2(g)(1). An impairment is considered to be a disability if it substantially
      limits an individual’s ability to perform a major life activity as compared to most
      people in the general population.       29 C.F.R. § 1630.2(j)(1)(ii).    Major life
      activities include, but are not limited to, caring for oneself, performing manual
      tasks, eating, lifting, bending, concentrating, communicating, and working; major
      life activities also include the operation of major bodily functions.     42 U.S.C.
      § 12102(2).    The term “substantially limits” is construed broadly in favor of
      expansive coverage, to the maximum extent permitted under the ADA, and is not
      meant to be a demanding standard. 29 C.F.R. § 1630.2(j)(1)(i).
¶20        As the administrative judge found, the appellant proved that he was
      diagnosed with PTSD on February 26, 2014. The administrative judge properly
      found that the appellant established that he was a person with a disability that
      limited his ability to perform major life activities, including sleeping
      and working.
¶21        The administrative judge carefully addressed the appellant’s assertion that,
      because the agency removed him for his failure to provide complete information
      about the events on the day that the Chariot Wildland Fire ignited, and the
      appellant’s failure was a result of a lack of memory caused by his PTSD, the
      agency removed the appellant because of his disability. ID at 41-42. He found
                                                                                        11

      that the detail the appellant provided in his official report concerning his
      activities on the date that the Chariot Wildland Fire ignited indicates that he had
      excellent recall of the events of that day. ID at 41. He found that the appellant
      failed to explain why he could not recall that he drove up the left fork of the
      Y intersection, a presumably nontraumatic event, when he could recall in detail
      what he described as the traumatic event of his Jeep catching fire.        ID at 41.
      Additionally, the administrative judge found that the appellant did not claim lack
      of recall during his OPR interview as the reason that he did not previously tell
      anyone that he had driven down the left fork at the Y intersection; rather, he told
      the interviewers after he admitted that he drove down the left fork that did not
      deem that information relevant. ID at 41.
¶22         Further, the administrative judge addressed the appellant’s assertion that the
      OPR investigators pressured him to not raise lack of memory as an issue. He
      found that the OPR investigators were aware that the appellant was stressed by
      reliving the experience of the Jeep fire and the fear that the Jeep might explode ,
      and they discussed the Employee Assistance Program with the appellant.            ID
      at 42. Thus, the administrative judge found that the appellant could raise stress
      during his OPR interview, and if lack of memory was the real reason for his
      omitting the fact that he drove the left fork of the Y intersection on the day of the
      fire, he could have disclosed that during the OPR interview, rather than giving
      other reasons for his omission. ID at 42. In any event, we note, as stated above,
      that the administrative judge found incredible the appellant’s assertion that he had
      no memory that he drove the left fork of the Y intersection, and that that finding
      is entitled to deference.     Haebe, 288 F.3d at 1301 .        We agree with the
      administrative judge that the appellant failed to prove that t he agency
      discriminated against him on the basis of disability.
¶23         Finally, although the appellant does not argue that the penalty is
      unreasonable in his petition for review, we agree with the administrative judge
      that the removal penalty is within the bounds of reasonableness for the sustained
                                                                                12

misconduct. The appellant’s lack of candor is a serious offense that strikes at the
heart of the employer-employee relationship.       See Ludlum v. Department of
Justice, 87 M.S.P.R. 56, ¶¶ 28, 29 (2000), aff’d, 278 F.3d 1280 (Fed. Cir. 2002).
Because the appellant was a law enforcement officer, and it is well settled that
law enforcement officers may be held to a higher standard of conduc t than other
Federal employees, the agency was entitled to hold him to a higher standard of
conduct. Hartigan v. Veterans Administration, 39 M.S.P.R. 613, 619 (1989); see
Dunn v. Department of the Air Force, 96 M.S.P.R. 166, ¶¶ 2, 12-18 (2004)
(finding that removal was a reasonable penalty when the employee engaged in
conduct unbecoming and exhibited a lack of candor), aff’d, 139 F. App’x 280
(Fed. Cir. 2005).

                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). 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
                                                                                   13

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
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.
