                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 12
                             Docket No. SF-0752-15-0456-I-1

                                    Cedric D. Clay,
                                       Appellant,
                                            v.
                               Department of the Army,
                                         Agency.
                                      March 2, 2016

           Cedric D. Clay, Lacey, Washington, pro se.

           Pamela J. Campbell and Stephen D. Funderburk, Joint Base
             Lewis-McChord, Washington, for the agency.


                                        BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                OPINION AND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     affirmed his removal.     For the reasons discussed below, we GRANT the
     appellant’s petition for review, AFFIRM the administrative judge’s findings
     regarding the charges, VACATE the administrative judge’s findings concerning
     nexus and the penalty, and REMAND the case to the regional office for further
     adjudication in accordance with this Opinion and Order.
                                                                                              2

                                        BACKGROUND
¶2         The agency removed the appellant on three charges:               use of offensive
     language in the workplace; inappropriate contact with a coworker; and failure to
     follow instructions.     Initial Appeal File (IAF), Tab 8, Subtabs 4e, 4h.            The
     appellant filed a timely appeal in which he argued that the agency discriminated
     against him on the basis of his race and retaliated against him for filing a Board
     appeal in 2012. 1 IAF, Tab 1. After holding a hearing, the administrative judge
     affirmed the agency’s action, finding that it proved its charges and established the
     required nexus between the appellant’s misconduct and the efficiency of the
     service. IAF, Tab 25, Initial Decision (ID) at 3-12, 18. The administrative judge
     further found that the deciding official properly weighed the relevant Douglas
     factors and conscientiously considered the pertinent mitigating factors, such that,
     under the circumstances presented, the penalty of removal was within the bounds
     of reasonableness.     ID at 18-21.     She also found that the appellant failed to
     establish his affirmative defenses of race discrimination and retaliation for
     engaging in protected activity. ID at 12-16.
¶3         In his petition for review, the appellant cites a purported settlement offer as
     evidence that the agency wrongfully removed him. 2 Petition for Review (PFR)
     File, Tab 1 at 1.    He asserts that his supervisor admitted to using offensive
     language as well, argues that removing him for such behavior is therefore harsh,
     and asks the Board to reconsider the penalty. Id. at 1-2. The appellant claims
     that his alleged inappropriate physical contact with a coworker was instead an
     honest accident, apologizes for bumping into the individual involved, and again


     1
      In that appeal, the Board reversed the agency’s prior removal action and reinstated the
     appellant with back pay. Clay v. Department of the Army, MSPB Docket No. SF-0752-
     12-0406-I-1, Initial Decision (July 24, 2012).
     2
      It is well settled that settlement offers are inadmissible on the merits of a case and are
     entitled to no weight in determining whether a removal is appropriate. See, e.g.,
     Cocchiara v. Department of Transportation, 18 M.S.P.R. 281, 283 (1983).
                                                                                          3

     asks the Board to reconsider the penalty. Id. at 2-3. He also cites a coworker’s
     statement of “that’s why we don’t want you here” as showing a conflict with that
     individual, and resubmits a list of 14 “highlited [sic] incidents” from his appeal in
     an apparent reiteration of his retaliation claim. Id. at 3-4; see IAF, Tab 22. The
     agency responds in opposition to the appellant’s petition for review. PFR File,
     Tab 3.

                                           ANALYSIS
     The agency met its burden of proving the charges but remand is required for
     further adjudication of the appellant’s affirmative defense of reprisal.
¶4         We agree with the administrative judge that the agency proved its charges
     by preponderant evidence.       ID at 3-12.   The administrative judge based her
     findings significantly on hearing testimony, see id., and 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, e.g., Haebe v. Department of
     Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) .
¶5         The administrative judge found that the agency proved the first charge,
     which comprised three specifications of using offensive language in the
     workplace,    finding   the   testimony   before   her   was   consistent   with   and
     corroborative of the documentary evidence offered in support of the agency’s
     charge and also was more credible than the appellant’s denial that he engaged in
     the conduct at issue.    ID at 3-7.    The administrative judge acknowledged the
     statement of the appellant’s coworker regarding the appellant’s presence in the
     workplace that the appellant cites on review, PFR File, Tab 1 at 2, explicitly
     noting the coworker’s admission that he “did not like working with the
     appellant.”   However, the administrative judge found that the appellant’s own
     statements and hearing testimony essentially corroborated the coworker’s
     testimony regarding the appellant’s use of offensive language in the workplace.
                                                                                       4

     ID at 4-5. On review, the appellant offers no sufficiently sound reason to revisit
     the administrative judge’s well-founded conclusions. Haebe, 288 F.3d at 1301.
¶6        As for the appellant’s contention that his supervisor used offensive
     language, the record does not reflect that the appellant argued in his appeal below
     that his supervisor did so. The Board generally will not consider an argument
     raised for the first time in a petition for review absent a showing that it is based
     on new and material evidence not previously available despite the party’s due
     diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
     Moreover, regarding this charge, the record reflects that the administrative judge
     considered the evidence as a whole, drew appropriate inferences, and made
     reasoned conclusions on the issue of credibility. ID at 3-5; see, e.g., 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 where she considered the evidence as a whole,
     drew appropriate inferences, and made reasoned conclusions); Broughton v.
     Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶7        Likewise, the administrative judge found that the agency proved the second
     charge, which comprised three specifications of inappropriate physical contact
     with a coworker, on the strength and consistency of multiple witnesses’ sworn
     statements and testimony, specifically determining that the reticence shown by
     one of the witnesses concerned her apprehension about the negative consequences
     of her testimony on the appellant’s employment, but that this reticence did not
     reflect any doubt or uncertainty about the facts to which she testified. ID at 7-10.
     Concerning the appellant’s argument that his inappropriate physical contact with
     a coworker was instead an honest accident, the appellant again challenges the
     administrative judge’s findings, PFR File, Tab 1 at 2-3, but he provides no basis
     to disturb the administrative judge’s well-reasoned determination that the agency
     established this charge by preponderant evidence through both documentary
     evidence and live testimony, ID at 7-10; Crosby, 74 M.S.P.R. at 105-06;
     Broughton, 33 M.S.P.R. at 359.
                                                                                       5

¶8        Based on the testimony before her, the administrative judge also found that
     the agency proved the third charge, which comprised two specifications of failure
     to follow instructions, rejecting the appellant’s contentions that he just had been
     in the bathroom when he could not be found during his assigned duty hours, and
     finding that, even though he was instructed not to leave confidential patient
     records on the copier, he did so anyway. ID at 10-12. Again, we find that the
     appellant provides nothing on review that would cause us to revisit the
     administrative judge’s findings.
¶9        Although the appellant does not specifically address his affirmative
     defenses in his petition for review, the list he provides at the end of his petition
     touches on them, emphasizing, among other things, the fact that he filed an equal
     employment opportunity complaint as well as a prior removal action reversed by
     the Board.   PFR File, Tab 1 at 3.     As noted above, the administrative judge
     rejected the appellant’s affirmative defense of race discrimination. ID at 12-15.
     However, following the issuance of the initial decision in this appeal, the Board
     issued Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), in which we
     reaffirmed that, instead of the burden-shifting analysis employed by the
     administrative judge to adjudicate the appellant’s affirmative defenses in this
     matter, the Board would adhere to the test set forth in Mt. Healthy City School
     District Board of Education v. Doyle, 429 U.S. 274, 287 (1977), in cases
     involving discrimination or retaliation allegations under 42 U.S.C. § 2000e-16.
     Savage, 122 M.S.P.R. 612, ¶ 50. Specifically, where 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 personnel action. Id., ¶ 51. If the appellant meets that
     burden, then we would inquire whether the agency has shown by preponderant
     evidence that it still would have taken the contested action in the absence of the
     discriminatory or retaliatory motive.     Id.   Given the administrative judge’s
     finding, after a careful review of the record before her, that the appellant
                                                                                          6

      provided no evidence that the agency took any of the actions cited in this appeal
      based on his race, 3 ID at 15, we find that the result would be the same under
      either the original or the post-Savage analysis. See Savage, 122 M.S.P.R. 612,
      ¶¶ 45-51; Browder v. Department of the Navy, 81 M.S.P.R. 71, ¶¶ 7-8 (1999),
      aff’d, 250 F.3d 763 (Fed. Cir. 2000) (Table).
¶10           However, as to the appellant’s claim of retaliation for filing his prior Board
      appeal, we note that he included a whistleblower reprisal claim in that prior
      appeal.     See Clay v. Department of the Army, MSPB Docket No. SF-0752-12-
      0406-I-1, Initial Decision at 10-12 (July 24, 2012). His reprisal claim therefore
      falls under 5 U.S.C. § 2302(b)(9)(A)(i), which makes it a prohibited personnel
      practice “to take or fail to take, or threaten to take or fail to take, any personnel
      action against any employee or applicant for employment because of the exercise
      of any appeal, complaint, or grievance right granted by any law, rule, or
      regulation, with regard to remedying a violation” of 5 U.S.C. § 2302(b)(8).
      Under such circumstances, his retaliation claim in this appeal should be analyzed
      under 5 U.S.C. § 1221(e), rather than under the general reprisal standard utilized
      by the administrative judge here. ID at 15-17; see Alarid v. Department of the
      Army, 122 M.S.P.R. 600, ¶¶ 12-15 (2015) (applying the 5 U.S.C. § 1221(e)
      standard to an affirmative defense of reprisal under 5 U.S.C. § 2302(b)(9)(B)).
¶11           Upon remand, the administrative judge should apprise the appellant of his
      burden of proof, afford the parties an opportunity to conduct discovery on the
      issue, and hold a supplemental hearing if requested. She first must determine
      whether the appellant established that he engaged in such protected activity, then
      consider whether that activity was a contributing factor in the removal at issue in
      this appeal. Alarid, 122 M.S.P.R. 600, ¶ 13. If the appellant establishes those
      factors by preponderant evidence, then the administrative judge must consider


      3
          We see no reason to disturb this finding on review.
                                                                                           7

      whether the agency met its burden by clear and convincing evidence that it would
      have taken the same action in the absence of the appellant’s protected activity.
      Id., ¶ 14. In the new initial decision, if the appellant fails to prove his affirmative
      defense of reprisal, then the administrative judge may adopt her original findings
      regarding nexus and the penalty.

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




      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.
