                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MELVIN CHAFFERDINE DUNIYA,                      DOCKET NUMBER
                  Appellant,                         DC-0752-15-0590-I-1

                  v.

     AGENCY FOR INTERNATIONAL                        DATE: April 12, 2016
       DEVELOPMENT,
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Melvin Chafferdine Duniya, Washington, D.C., pro se.

           Harmony Wade, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed his 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The agency removed the appellant, a GS-13 Financial Management
     Specialist, based on a single charge of failure to follow instructions.     Initial
     Appeal File (IAF), Tab 4 at 24-27. The deciding official found that, on the three
     instances specified in the notice of proposed removal, the appellant refused to
     follow his supervisor’s instructions to sign letters accepting the designation of
     Contracting Officer’s Representative (COR) and to serve in that capacity to
     manage two agency training contracts. Id. at 24.
¶3        The appellant filed a timely appeal, in which he argued that the agency’s
     instructions were illegal because he lacked the proper certification. IAF, Tab 1.
     He also argued that it would be impossible for him to perform the COR duties in
     addition to his other duties.    Id.   The appellant further contended that his
     supervisor lacked the requisite authority to designate CORs and that COR duties
     were incompatible with his other duties as a vendor database administrator. IAF,
     Tab 12 at 4-5; see IAF, Tab 4 at 29.      He interposed affirmative defenses of
     reprisal for whistleblowing and race discrimination. IAF, Tab 1, Tab 8 at 6-8.
     After holding a hearing, the administrative judge affirmed the appellant’s
                                                                                      3

     removal. IAF, Tab 29, Initial Decision (ID). The administrative judge found that
     the appellant conceded, in his response to the agency’s notice of proposed
     removal, as well as in his appeal below, that he refused to obey the agency’s
     instructions to sign the specified designation letters and to serve as the COR on
     the contracts at issue, choosing instead to dispute the propriety of the orders for
     him to do so. ID at 3; IAF, Tab 4 at 29-32.
¶4        To prove a charge of failure to follow instructions, an agency must establish
     that the employee: (1) was given proper instructions; and (2) failed to follow the
     instructions, regardless of the employee’s intent.    E.g., Powell v. U.S. Postal
     Service, 122 M.S.P.R. 60, ¶ 5 (2014). Even where there is substantial reason to
     believe that an order is improper, an employee first must obey the order and then
     challenge its validity, except in “extreme or unusual circumstances” in which the
     employee would be placed in a clearly dangerous situation or which would cause
     him irreparable harm. Pedeleose v. Department of Defense, 110 M.S.P.R. 508,
     ¶¶ 16-17, aff’d, 343 F. App’x 605 (Fed. Cir. 2009).        This rule reflects the
     fundamental management right to expect that its decisions will be obeyed and its
     instructions carried out. Id., ¶ 16. Exceptions to the rule are not based on the
     correctness of the employee’s objections to the order but apply in situations in
     which there could be a significant adverse impact on the employee from
     cooperation with an order that might be improper. Id., ¶ 18.
¶5        The administrative judge found the appellant’s argument that his supervisor
     lacked the authority to designate him as a COR was specious because the record
     instead indicated that his supervisor only had identified the appellant to the
     proper Contracting Officer who then used her undisputed authority to designate
     the appellant as a COR. ID at 4-5. Regarding the appellant’s certification to
     perform COR duties, the administrative judge found that hearing testimony
     credibly established that the appellant had taken sufficient continuing education
     credits to maintain his certification, and further found that, even if he had not
     properly maintained that credential, such failure would not be a proper basis on
                                                                                       4

     which to refuse to obey the instruction.     ID at 5-8.   The administrative judge
     found that the agency established that it had sufficient safeguards to mitigate any
     potential incompatibility between COR duties and the appellant’s duties
     managing a vendor code database, noting the requirement for others to sign off on
     the appellant’s actions and finding that, in any event, such potential conflict also
     was not a proper basis on which to refuse to obey the instruction. ID at 8-9.
     Similarly, the administrative judge found that the appellant’s contention that he
     did not have enough time to perform COR duties as well as his vendor database
     duties was again not a proper basis on which to refuse to obey the instruction, and
     she concluded from the record as a whole that this was the actual reason
     motivating the appellant. ID at 9-10. Thus, the administrative judge found that
     the agency established by preponderant evidence that the appellant engaged in the
     specified misconduct and she sustained the charge. ID at 10.
¶6        The administrative judge further found that the appellant failed to establish
     his affirmative defenses. ID at 10-16. The appellant essentially claimed that the
     proposing and deciding officials had collaborated with a previous supervisor to
     continue that individual’s alleged practice of racial discrimination against the
     appellant. ID at 11; IAF, Tab 13. However, despite her repeated entreaties for
     him to do so, the administrative judge found that the appellant failed to present
     any evidence or elicit any testimony, save for his own, in support of his theory
     that the officials involved were doing the bidding of the appellant’s prior
     supervisor or that the officials themselves, including the prior supervisor, had any
     motivation to discriminate against him on the basis of his race. ID at 11-12.
¶7        The administrative judge also found that the appellant failed to establish his
     affirmative defense of reprisal for protected whistleblowing activity. ID at 12-16.
     First, she found that, even though the appellant actually disclosed a violation of
     an agency rule regarding the allocation of office space, because he disclosed it as
     an example of preferential treatment towards a coworker of another race, and was
     unaware at the time of his disclosure that such a rule existed, he did not have a
                                                                                         5

      reasonable belief that he was disclosing a violation of a rule and therefore
      engaging in protected whistleblowing when he made the disclosure. ID at 15.
      Nevertheless, the administrative judge went on to find that, even if the appellant
      had established that he had a reasonable belief that he was disclosing a violation
      of a rule at the time of his disclosure, he failed to prove that his alleged
      disclosure was a contributing factor in the agency’s removal action. ID at 15.
      Again, despite the appellant’s opportunity at the hearing to question the officials
      involved under oath, and the administrative judge’s repeated invitations for the
      appellant to offer evidence in support of a retaliatory motive, the administrative
      judge found that the appellant “did not assert, much less prove, any facts that
      connect his disclosure with the relevant officials’ motives to either propose or
      effect his removal.” ID at 16.
¶8          Regarding the penalty, the administrative judge found that the deciding
      official considered all the relevant Douglas factors, that the penalty did not
      exceed the bounds of reasonableness, and that the appellant’s misconduct bore a
      nexus with the efficiency of the service. ID at 16-19. She also noted that the
      agency had twice employed progressive discipline in the previous 2 years for the
      same misconduct implicated here and had specifically warned the appellant that
      he would receive additional discipline for his continued failure to follow
      instructions. ID at 18.
¶9          In his timely filed petition for review, the appellant reasserts his argument
      that the instruction at issue was not a proper one, and he reiterates his affirmative
      defenses.   Petition for Review (PFR) File, Tab 1.        He also argues that the
      administrative judge abused her discretion concerning discovery and witnesses
      and submits what he claims is new and material evidence.           Id.   The agency
      responds in opposition. PFR File, Tab 5.
¶10         As for the merits of the appellant’s arguments, we agree with the
      administrative judge that none of the reasons why the appellant claims that he
      refused the instructions at issue show that obeying the instruction would have
                                                                                           6

      placed him in a clearly dangerous situation, or caused him irreparable harm. See
      Pedeleose, 110 M.S.P.R. 508, ¶¶ 16-17.       The appellant’s arguments regarding
      whether the agency correctly designated him as a COR and the currency of his
      COR certification both implicate the validity of his actions in that role, and, as he
      indicates on review, a COR acting in the absence of such authority “may result in
      an unauthorized/informal commitment” under Federal acquisition regulations.
      PFR File, Tab 1 at 12. However, Federal Acquisition Regulation (FAR) 1.602-3,
      submitted by the appellant as part of his case below, specifically provides for the
      ratification of such unauthorized commitments.       IAF, Tab 14, Exhibit (Ex.) 10
      at 1. When the pertinent regulations provide for such a remedy, it cannot be said
      that the harm from such an unauthorized commitment is irreparable.                 See
      Pedeleose, 110 M.S.P.R. 508, ¶¶ 16-17. As the administrative judge noted, the
      record contains no evidence indicating what penalty might be imposed on an
      improperly   credentialed   COR,     and   FAR    1.601(a)    places     the   ultimate
      responsibility for the lawful administration of Federal contracts on the head of the
      agency, not the COR. ID at 8; IAF, Tab 14, Ex. 10 at 1. Moreover, the appellant
      has failed to show, and we perceive no likely circumstance under which he could
      show, that obeying the instructions at issue would have put him in immediate
      danger or caused irreparable harm. The same is true of the appellant’s assertions
      that it would be impossible for him to perform the COR duties in addition to his
      other duties and that such duties were incompatible with his management of the
      vendor database.
¶11         Thus, we agree with the administrative judge that the appellant failed to
      establish that obeying the instructions at issue would have either placed him in a
      clearly dangerous situation or caused him irreparable harm.            ID at 8-10; see
      Pedeleose, 110 M.S.P.R. 508, ¶¶ 16-17.        The appellant identifies nothing on
      review that would cause us to revisit the administrative judge’s findings regarding
      the charged misconduct. Nor has the appellant identified anything on review that
      would cause us to revisit the administrative judge’s findings regarding the nexus
                                                                                           7

      of the appellant’s misconduct with the efficiency of the service, or the
      reasonableness of the penalty, especially considering the progressive discipline
      the appellant previously received for the same misconduct, and his assertion
      before the administrative judge that if he returned to work, he would continue to
      refuse to follow the instruction at issue, which shows a lack of remorse on his
      part, and indicates a lack of rehabilitation potential.     ID at 18-19; IAF, Tab 4
      at 39-42, 48-50.
¶12         Regarding his affirmative defenses, the appellant reiterates his arguments
      that agency officials discriminated against him, by “bullying [him] through work
      assignments.” PFR File, Tab 1 at 15. However, his conclusory presentation on
      review, id. at 14-15, provides no reason to revisit the administrative judge’s
      conclusions, which she based primarily on the testimony before her, ID at 10-12.
      The Board must give deference to an administrative judge’s credibility
      determinations when they are based, explicitly or implicitly, on the observation of
      the demeanor of witnesses testifying at a hearing; the Board may overturn such
      determinations only when it has “sufficiently sound” reasons for doing so.
      Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) .             The
      appellant fails to identify such reasons. In this regard, the initial decision reflects
      that the administrative judge considered the evidence as a whole, drew
      appropriate inferences, and made reasoned conclusions on issues of credibility.
      Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
      (1987).
¶13         Regarding his whistleblowing defense, the appellant challenges the
      administrative judge’s conclusion that he lacked a reasonable belief that he was
      disclosing a violation of a rule because, even though he acknowledges that he was
      unaware of the specific rule in question, once he learned of the rule he “knew that
      he would be retaliated against.” PFR File, Tab 1 at 15. Given the administrative
      judge’s finding that the appellant also failed to demonstrate that his purported
      disclosure was a contributing factor in the removal action, we agree that, even if
                                                                                         8

      the appellant demonstrated a reasonable belief that he was disclosing a violation
      of an agency rule regarding the allocation of office space, he failed to establish
      his affirmative defense of whistleblowing by preponderant evidence. ID at 15-16.
      The proposing and deciding officials both testified that they were unaware of the
      appellant’s purported disclosure and, despite his opportunity to question all the
      relevant agency officials on this matter, the appellant failed to elicit any evidence
      to the contrary, or any evidence of a conspiracy between those officials. ID at 16.
      Moreover, to the extent that the appellant is arguing that agency officials
      committed      a     prohibited   personnel   practice   proscribed   by    5 U.S.C.
      § 2302(b)(9)(D), removing him for refusing to obey an order that would require
      him to violate a law, “the right-to-disobey provision at section 2302(b)(9)(D)
      extends only to orders that would require the individual to take an action barred
      by statute.”       Rainey v. Department of State, 122 M.S.P.R. 592, ¶ 11 (2015).
      Because, as noted above, the appellant alleged herein that the agency’s request
      would cause him to violate a FAR, not a statute, 5 U.S.C. § 2302(b)(9)(D) is not
      applicable to the circumstances at issue.
¶14         Next, the appellant claims that the administrative judge abused her
      discretion in ruling on discovery, PFR File, Tab 1 at 16, but the record does not
      indicate that the appellant ever filed a motion to compel discovery below. His
      failure to file a motion to compel precludes him from raising a discovery dispute
      for the first time on review.          See, e.g., Szejner v. Office of Personnel
      Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed. Cir.
      2006).     In any event, even if the appellant had filed a motion to compel, he
      has not shown how the information he sought to discover would have changed the
      result in this appeal. See id.
¶15            The appellant also contends that the administrative judge abused her
      discretion regarding witnesses.     PFR File, Tab 1 at 16-18.    The administrative
      judge has wide discretion under 5 C.F.R. § 1201.41(b)(8), (10) to exclude
      witnesses where it has not been shown that their testimony would be relevant,
                                                                                           9

      material, and nonrepetitious. Franco v. U.S. Postal Service, 27 M.S.P.R. 322,
      325 (1985). In the prehearing conference summary, following her rulings on the
      parties’ witness requests, the administrative judge instructed the parties that her
      rulings therein would become final unless they filed timely objections.           IAF,
      Tab 15 at 10. Although the appellant filed a motion for the administrative judge
      to reconsider one of the witnesses she excluded, which the administrative judge
      denied, IAF, Tabs 18-19, he does not allege on review that the administrative
      judge improperly did so. Other than that motion, which did not involve any of
      the witnesses identified in his petition for review, the record does not reflect that
      the appellant objected to the administrative judge’s rulings on witnesses. The
      appellant’s failure to timely object to the administrative judge’s rulings on
      witnesses below precludes him from doing so on petition for review. Tarpley v.
      U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988).         Moreover, the appellant’s
      arguments on review do not show that any of the testimony he contends that he
      would have elicited from any of the witnesses, including those that the
      administrative judge admitted or those that the appellant alleges she improperly
      excluded, could have established that the agency’s instruction would have placed
      him in danger or would have caused him irreparable harm.
¶16         As for the documents the appellant submits on review, under 5 C.F.R.
      § 1201.115, the Board will not consider evidence submitted for the first time with
      the petition for review absent a showing that it was unavailable before the record
      was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,
      3 M.S.P.R. 211, 214 (1980).      The appellant makes no such showing, 2 and the
      documents themselves appear to date from before the close of the record below.

      2
        The appellant also contends that the administrative judge granted the agency’s motion
      to reopen the record, but denied his motion to do the same. PFR File, Tab 1 at 18. The
      record reflects, however, that the record was not closed when the appellant sought to
      reopen it, and the administrative judge denied the appellant’s motion as unnecessary,
      specifically reassuring him that he would have the opportunity to submit additional
      evidence. IAF, Tab 22 at 2.
                                                                                 10

PFR File, Tab 1 at 21, 26, 32, 36; ID at 19. Moreover, because the documents
address either the certification of CORs or the appellant’s training record, PFR
File, Tab 1 at 21-36, and we agree with the administrative judge that, regardless
of the appellant’s COR certification status, he failed to establish that obeying the
instruction would have placed him in a clearly dangerous situation, or would have
caused him irreparable harm, ID at 8, the documents are not relevant to the
charged misconduct in this matter.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.

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
                                                                                11

        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
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.        42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.

Other Claims: Judicial Review
        If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction to review this final decision.     The court of
appeals must receive your petition for review within 60 days after the date of this
                                                                                 12

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the court’s
Rules of Practice, and Forms 5, 6, and 11. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




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