                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GWENDOLYN DENISE PIERCE,                        DOCKET NUMBER
                 Appellant,                          DC-0752-15-0355-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: September 6, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Lisa Alexis Jones, Esquire, New York, New York, for the appellant.

           Eura A. Cherry and Jack W. Rickert, Springfield, Virginia, 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 her removal based on the charge that she knowingly made false
     statements with the intention of deceiving or defrauding the Office of Workers’
     Compensation Programs (OWCP). Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).           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. We MODIFY the initial decision to
     incorporate the standards set out in the Board’s decision in Savage v. Department
     of the Army, 122 M.S.P.R. 612 (2015), and supplement the administrative judge’s
     analysis regarding the appellant’s affirmative defenses of discrimination. Except
     as expressly modified by this Final Order, we AFFIRM the initial decision.
¶2        Prior to her removal, the appellant was a Multimedia Specialist, pay band
     IA-4, at the National Geospatial-Intelligence Agency (NGA). Initial Appeal File
     (IAF), Tab 5 at 44. The duties of her position included preparing graphic arts
     products, such as designs for websites. Id. at 31. The appellant stopped working
     during March 2012 owing to carpel tunnel syndrome, a repetitive use injury for
     which she underwent surgery, and other medical conditions, and she began to
     receive full benefits from the OWCP. Id. at 71-72, 89-90; IAF, Tab 22 at 13, 39.
     On or about June 22, 2013, she completed a form EN-1032 so that the OWCP
     could determine the level of benefits to which she would be entitled. IAF, Tab 20
     at 61-66. She completed another EN-1032 on or about July 5, 2013. Id. at 68‑75.
     The EN-1032 collects information regarding employment, earnings, and sources
     of income, including income from self-employment and volunteer work, and
     information regarding the receipt of other Federal benefits such as disability
     retirement payments. Id. at 61-75. The form warns those submitting it about
                                                                                             3

     potential criminal prosecution and forfeiting compensation for reporting false
     information. See, e.g., id. at 61, 63, 66. The appellant answered “no” in response
     to questions about whether she had worked “for any employer during the past
     15 months” or was “self-employed or involved in any business enterprise in the
     past 15 months,” and she answered in the affirmative when asked if she was
     “unemployed for all periods during the past 15 months.”            Id. at 61-62, 70‑71.
     When asked whether she had performed any volunteer work within the past
     15 months, including “volunteer work for which ANY FORM of monetary or
     in-kind compensation was received,” the appellant answered “no.” Id. at 62, 71
     (capitalization in original).
¶3           In March 2013, the agency’s Office of the Inspector General (OIG) received
     a tip that the appellant might be receiving OWCP benefits while she was being
     compensated for outside work. IAF, Tab 22 at 51. Together with the Department
     of Labor (DOL), the OIG initiated an investigation. IAF, Tab 5 at 30-32, 121,
     123. Investigators obtained copies of several checks issued to the appellant by
     Petworth United Methodist Church for “ministry” 2 services between July 2012
     and June 2103. IAF, Tab 20 at 77-88. Most of the checks were in the amount of
     $250.     Id.   The appellant endorsed and deposited the checks.           Id. at 78‑85.
     Additionally, the investigators obtained her 2012 Federal income tax return,
     which showed a business loss of $26,216 for self-employment activities
     associated with a graphic design business and a company called “Matters of the
     Heart,” which she described as “Ministries, Spiritual.” Id. at 90, 98-101. One of
     the expenses the appellant claimed for Matters of the Heart was $2,000 for
     clerical robes and upkeep. Id. at 101. The appellant’s 2013 Federal income tax
     return included business losses of $41,162 for Matters of the Heart. IAF, Tab 21
     at 5, 13-15. Her itemized business expenses for 2013 included $1,200 for travel,
     $1,500 for editorial expenses, and $2,000 for clerical robes and upkeep. Id. at 15.

     2
         The appellant holds master’s and doctoral degrees in theology. IAF, Tab 21 at 46.
                                                                                     4

     The record also includes a print‑on‑demand agreement dated March 22, 2013,
     between the appellant’s business, Bennella Publishing Press, Inc., and Lightning
     Source, Inc. for the printing of her book. Id. at 17-19, 24-27. Additionally, the
     record includes documents reflecting other related business activities, such as
     Internal Revenue Service correspondence to “Daughter of Faith Health and
     Spiritual Healing Ministry,” advertisements from the internet offering copies of
     the appellant’s book and her services as a speaker, and YouTube links
     documenting her preaching and ministry services. Id. at 21-22, 45‑47, 49‑52;
     IAF, Tab 22 at 37. Based on this evidence, the agency determined that the
     appellant had knowingly provided false information on her EN-1032 forms with
     the intent to mislead. The agency removed her based on two specifications of the
     charge of making false statements. IAF, Tab 5 at 60, 77‑78.
¶4        Concurrently, the U.S. Attorney for the Eastern District of Virginia pursued
     criminal charges against the appellant. Id. at 110-11. She was charged with one
     misdemeanor count of making “false statements to the United States Department
     of Labor in connection with a claim for federal workers’ compensation that was
     originally filed within the Eastern District of Virginia.” Id. at 110. The record
     includes a transcript of her plea hearing on October 1, 2014, before the Honorable
     T. Rawls Jones, Jr., Magistrate Judge. Id. at 95-108. That transcript recorded the
     appellant’s knowing, informed, and voluntary admission under oath to a
     misdemeanor count of making a false statement in connection with her claim for
     workers’ compensation.       Id. at 105-07; see IAF, Tab 21 at 29-36 (plea
     agreement). Judge Jones later dismissed the misdemeanor charge and vacated the
     plea when the Government was unable to document a specific financial loss for
     purposes of sentencing the appellant. IAF, Tab 5 at 34-42, 46‑58.
¶5        The administrative judge, however, sustained the charge.       IAF, Tab 31,
     Initial Decision (ID) at 2-7. He rejected the appellant’s affirmative defenses of
     discrimination based on race, sex, and disability, and retaliation for prior equal
                                                                                         5

     employment opportunity (EEO) activity. 3 ID at 7-17. He found that the penalty
     of removal was reasonable and promoted the efficiency of the service.              ID
     at 17-18. The appellant filed this petition for review. Petition for Review (PFR)
     File, Tab 1.
¶6         On review, the appellant asserts that she reported both ministry work and
     web and publishing activity when she was examined by Dr. R., an independent
     medical examiner, on March 15, 2013. Id. at 5. Dr. R., she asserts, related her
     activities in his report. Id. Dr. R. found her to be “disabled from the work that
     she was doing at the time as a graphic designer,” but she could “continue to do
     work with the promotion of her books and public speaking if she were to be given
     assistance with movement of her supplies.”        Id.; IAF, Tab 23 at 30.    Dr. R.’s
     report was incorporated in the appellant’s workers’ compensation file.           IAF,
     Tab 23 at 29.   Following her examination by Dr. R., the appellant asserts, her
     claim continued to be processed by the OWCP without incident, and no one from
     DOL, including the assigned claims specialist, requested additional information
     about her outside activities. PFR File, Tab 1 at 5.
¶7         Based on his initial findings, however, M.G., the DOL investigator handling
     the appellant’s case, recommended that the OWCP send her an EN-1032 to
     complete. 4 Id. at 6; Hearing Compact Disc (HCD) (testimony of M.G.). In the
     affidavit supporting his application for a warrant to search her home, M.G. stated
     that he had reviewed the appellant’s OWCP records, that she had never reported
     any outside employment or related income, and that her physicians reported that
     she was “totally incapacitated.” (HCD) (testimony of M.G.); IAF, Tab 20 at 55.
     The appellant suggests that this was a false statement because M.G.


     3
      The appellant asserted discrimination based on race (African American), sex (female),
     disability, and retaliation for prior EEO activity. IAF, Tab 1 at 6, Tab 23 at 7.
     4
      The appellant explains that she completed the EN‑1032 in June and July 2013 at
     M.G.’s request, and the OWCP sent that EN-1032 in the normal course of business.
     PFR File, Tab 1 at 6.
                                                                                      6

     acknowledged on cross-examination that he had eventually seen the medical
     report and had not turned it over to the U.S. Attorney. PFR File, Tab 1 at 6-7;
     HCD (testimony of M.G.). M.G. testified, however, that the medical report had
     only come to his attention on the day of the hearing. HCD (testimony of M.G.).
¶8        The appellant further argues that the administrative judge erred in assessing
     the facts of the case because he “relied on the EN-1032s, the now discredited
     criminal information and vacated plea in support of [his] determination that the
     agency had met its burden of establishing that she ‘knowingly misrepresented her
     business activities to OWCP so that she would continue to received [sic]
     unreduced benefits.’” PFR File, Tab 1 at 8 (quoting ID at 7). She argues that the
     administrative judge failed to consider Dr. R.’s report as evidence of her actual
     innocence, as well as her own uncontested testimony. PFR File, Tab 1 at 8-10.
     She points out that Dr. R.’s report had been in her OWCP file since March 2013,
     and the OWCP employees reviewing her file had not questioned it. Id. at 9. She
     also points out that no one has contested the fact that she is disabled and the
     criminal charge against her was dismissed with prejudice.            Further, the
     administrative judge failed to consider her uncontested testimony that her book
     was copyrighted, her websites were in place, and her business losses were
     incurred outside of the March 2012 through June 2013 reporting period; and she
     received no income during the reporting period other than the church stipend. Id.
     at 10. She argues that the agency managers who stated that she had designed
     websites for the agency were among the persons named in her EEO
     complaints. Id. She additionally argues that the EN-1032s and tax returns were
     “after acquired information” and did not form the basis for her removal. Id.
¶9        The appellant’s arguments are unavailing. First, she cannot rely upon the
     court’s dismissal of the criminal charge as proof of innocence. When he moved
     for dismissal, the Assistant U.S. Attorney prosecuting her case did not concede
     that she was innocent. To the contrary, he explained that she had committed the
     acts underlying the charge, but he was unable to establish a dollar loss because
                                                                                           7

      the OWCP had found that she was nevertheless disabled and qualified for full
      benefits during the time in question.       IAF, Tab 5 at 37-41.      The prosecutor
      pointed out that she still could be prosecuted for making false statements. The
      judge, however, dismissed the charge with prejudice to free her from uncertainty
      as to whether she might eventually face new charges.          Id. at 39‑41.    Further,
      while the charge still stood, the prosecutor refused to let the appellant enter an
      Alford plea, 5 and instead required her to state under oath that she had committed
      the conduct upon which the charge was based. Id. at 100. Additionally, while the
      court vacated her plea, the appellant never repudiated her sworn stipulation to the
      facts underlying the plea agreement. Id. at 93.
¶10         Moreover, a criminal proceeding and a Board appeal are distinct processes
      with differing burdens of proof.     Because a criminal charge requires a higher
      burden of proof, “[i]t is well settled that an acquittal on criminal charges does not
      per se impair the substantiality of evidence of guilt in a corresponding charge
      made in an appeal from a Civil Service removal for cause.”                    Peden v.
      United States, 512 F.2d 1099, 1104 (Cl. Ct. 1975); see Larry v. Department of
      Justice, 76 M.S.P.R. 348, 355 (1997) (holding that dismissing related criminal
      charges did not matter for purposes of the Board appeal because the charge
      underlying the removal was based on the appellant’s conduct and not on the
      merits of the criminal charges).
¶11         Furthermore, the appellant’s discussion with Dr. R. regarding her outside
      activities did not inoculate her from liability for subsequent material omissions on
      the EN-1032 forms. The EN-1032 form specifically states that the information
      provided would be used to determine whether the claimant completing the form
      would be entitled to receive continued benefits and at what level. See, e.g., IAF,
      Tab 20 at 63, 66, 68.      The form warns the claimant to report employment


      5
       An Alford plea is a guilty plea made as part of a plea agreement wherein the defendant
      does not admit actual guilt. Black’s Law Dictionary 83 (9th ed. 2009).
                                                                                      8

      information even if she harbors doubts as to its relevance. Id. at 61. Because of
      this warning, the appellant would have known that reporting her outside activities
      might jeopardize her benefits. Additionally, the extent to which she described her
      outside activities to Dr. R. is unclear. Dr. R.’s statement does not mention her
      ongoing relationship with specific churches, her web design activities, or whether
      she was paid for any of her outside activities. IAF, Tab 23 at 30. As for her
      assertion that her income-producing activities occurred outside of the 15‑month
      reporting period, the checks from Petworth United Methodist Church were issued
      beginning 12 months prior to her completing the first EN‑1032.       IAF, Tab 20
      at 77-88.   As Chief Executive Officer of Bennella Publishing Press, Inc., the
      appellant entered into a contract with Lightning Source, Inc., for the printing of
      her book merely 3 months prior to completing the first EN‑1032. IAF, Tab 21
      at 17-19, 24‑27.
¶12        Finally, the appellant’s assertion that the EN-1032s and Federal income tax
      returns did not form the basis for her removal, PFR File, Tab 1 at 8-10, is not
      borne out in the record.     Her false statements on the EN-1032s formed the
      specific basis for the agency’s action against her, and the agency was clearly in
      possession of information such as her Federal income tax returns when it
      proposed her removal.      IAF, Tab 5 at 77-78, 91.   The appellant’s arguments
      asserting innocence are thus unavailing, and we affirm the administrative
      judge’s findings.
¶13        The appellant also asserts that she established her affirmative defenses of
      race, sex, and disability discrimination and retaliation for prior EEO activity.
      PFR File, Tab 1 at 11-14. Specifically, she argues that she “adduced uncontested
      record evidence undermining the agency’s claim that it had a legitimate
      non-discriminatory basis for her termination,” namely, evidence of innocence in
      the criminal proceeding, including a plea that was both vacated and “discredited
      by the averments in the . . . motion to vacate.” Id. at 13-14. That the agency
                                                                                            9

      proceeded with her removal anyway, she asserts, raises an inference that the real
      reasons for her termination were unlawful discrimination and retaliatory
      animus. Id. at 14.
¶14         On the issues of race and sex discrimination, the administrative judge
      reached the correct result, see ID at 7-9, but the initial decision does not reflect
      the Board’s revised analytical framework set forth in Savage, 122 M.S.P.R. 612,
      ¶¶ 35-51. When an appellant asserts an affirmative defense of discrimination or
      retaliation   under   42 U.S.C.     § 2000e‑16,    in   reviewing    the   evidence   of
      discrimination or retaliation, the Board, will first inquire whether she has shown
      by preponderant evidence that the prohibited consideration was a motivating
      factor in the contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 41. If the
      appellant meets her burden to show that discriminatory or retaliatory animus was
      a motivating factor in the contested personnel action, the burden of proof shifts to
      the agency to show by preponderant evidence that it would have taken the action
      even if it lacked such a motive. Savage, 122 M.S.P.R. 612, ¶¶ 48-50. If the
      appellant ultimately proves that the action was based on a violation of 42 U.S.C.
      § 2000e‑16,     which   in   turn    constitutes   a    prohibited   personnel   action
      under 5 U.S.C. § 2302(b)(1), the Board will order the agency to cancel the action
      and return the appellant to the status quo ante. Id., ¶ 47.
¶15         Here, the appellant relied solely on the dismissal of the criminal charge,
      which she characterizes as proof of actual innocence. PFR File, Tab 1 at 13. As
      we have explained above, the Government’s motion to dismiss the charge is not
      an admission of her innocence.        Further, the agency issued its decision letter
      removing the appellant on December 16, 2014,            IAF, Tab 5 at 60, which was
      prior to dismissal of the criminal charge, id. at 34-42, thus undermining any
      assertion that the agency removed her despite knowledge of her “actual
      innocence,” PFR File, Tab 1 at 13-14.
                                                                                            10

¶16           The appellant’s allegations of disability discrimination were equally
      unavailing.     The initial decision includes a detailed analysis of that issue.
      ID at 9-14. Assuming that the appellant established that she is a person with a
      disability, see 42 U.S.C. § 12102; 29 C.F.R. § 1630.2(g), she presented no
      evidence to suggest that either the proposing or deciding official considered her
      disability in deciding to undertake removal proceedings. She likewise presented
      no evidence of similarly situated coworkers, who were not disabled and who
      evaded disciplinary action for similar misconduct.          Conversely, the agency
      presented a legitimate, nondiscriminatory reason for its action, which was
      supported by preponderant evidence           including the appellant’s voluntary
      admission of wrongdoing. IAF, Tab 5 at 93.
¶17           As for her allegation of retaliation, the appellant admitted that the
      proposing and deciding officials knew nothing of her EEO activity, but she
      alleges that other persons—including persons who reported and investigated her
      wrongdoing—knew of her EEO activity and were motivated by it.              PFR File,
      Tab 1 at 14; see Savage, 122 M.S.P.R. 612, ¶¶ 42-43. As for the persons who
      reported her wrongdoing to the OIG, her suggestion that those persons may have
      been motivated by retaliatory animus is purely speculative.          She offered no
      evidence regarding either the identities or motivations of the persons who
      approached the OIG. 6       As for the motives of the investigators, M.G. gave
      undisputed testimony that he was unaware that any complaint had been filed
      against him. HCD (testimony of M.G.).
¶18           Finally, the appellant alleges that the administrative judge improperly
      refused to allow one of her witnesses, K.P., who was the agency’s OIG
      investigator in this matter, to testify.         PFR File, Tab 1 at 14-15.           The
      administrative judge found that K.P.’s proffered testimony would duplicate that
      of other witnesses, including M.G., the DOL investigator.          IAF, Tab 25 at 9,

      6
          The persons who reported her misconduct did so anonymously. IAF, Tab 22 at 51.
                                                                                      11

      Tab 28.    The appellant argues that K.P. would have testified regarding
      “NGA-OIG internal policies and practices relating to investigations and the rights
      of targeted employees . . . as well as the extent of NGA OIG’s knowledge of [her]
      prior protected activity.”     PFR File, Tab 1 at 14-15.     She argues that M.G.
      “was not competent to testify about NGA‑OIG policies and practices.” Id. at 15.
¶19        An    administrative      judge   has    wide    discretion   under   5 C.F.R.
      § 1201.41(b)(8), (10) to exclude witnesses when it has not been shown that their
      testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal
      Service, 27 M.S.P.R. 322, 325 (1985).        The administrative judge here decided
      which witnesses to include and exclude based upon the information that the
      parties proffered. IAF, Tab 20 at 42-43, Tab 23 at 7-9. The appellant’s proffer
      regarding K.P. stated in its entirety: “[K.P.], a current NGA OIG Investigator,
      was lead OIG investigator into allegations against appellant.” IAF, Tab 23 at 7.
      The appellant’s written objection to the administrative judge’s prehearing
      conference summary was only a little more instructive:
            While both [M.G.] and [K.P.] possess relevant information on
            duplicative issues relating to the investigation and factual basis for
            underlying claim of “False Statements,” appellant submits that
            NGA-OIG internal policies and practices relating to investigations
            and the rights of targeted employees are relevant to the issues in this
            matter, including credibility and retaliation. As an employee of
            DOL-OIG, [M.G.] is not competent to testify about NGA-OIG
            policies and practices. Accordingly, appellant submits that the
            testimony of [K.P.] would not be entirely duplicative to that
            of [M.G.].
      IAF, Tab 26.       Absent additional factual justification, it was not an abuse of
      discretion for the administrative judge to find that K.P.’s testimony would
      duplicate that of M.G. Further, the record shows that M.G. served as the primary
      investigator in this matter, and as such, his testimony would have been more
      relevant than that of K.P.       IAF, Tab 5 at 30.    The appellant’s argument is
      thus unavailing.
                                                                               12

                 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 U.S. 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
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
                                                                                13

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.
