                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ROBERT K. GOOCH,                                DOCKET NUMBER
                  Appellant,                         AT-0752-14-0080-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: February 25, 2015
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Mark L. Cohen, Esquire, Chicago, Illinois, for the appellant.

           David M. Burns, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     upheld the agency’s decision to remove him from federal service. 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

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the 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, and based on the following
     points and authorities, 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.       Except as expressly MODIFIED by this Final
     Order to supplement the analysis in the initial decision of whether the agency
     proved its charges and established nexus between the charges and the efficiency
     of the service, we AFFIRM the initial decision.

                                        BACKGROUND
¶2        The agency removed the appellant from his position as a Criminal
     Investigator, GS-1811-13, with the Federal Protective Service based on charges
     of battery and lack of candor. Initial Appeal File (IAF), Tab 4 at 12-14. The
     appellant filed a timely appeal with the Board challenging his removal. IAF,
     Tab 1. The appellant stipulated to “the truth of” the charges but contended that
     the penalty of removal was too severe. IAF, Tab 15 at 5, Tab 17 at 4. The
     appellant raised his diagnosis of Post Traumatic Stress Disorder (PTSD) as a
     relevant mitigating factor in the penalty determination for the first time during
     the appeal process. IAF, Tab 19, Initial Decision (ID) at 4. After holding a
     hearing, the administrative judge issued an initial decision sustaining the charges
     based on the appellant’s stipulations and concluding that removal was a
     reasonable and appropriate penalty even if the appellant’s PTSD were considered
     a mitigating factor. ID at 2, 4.
                                                                                      3

¶3        The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response in opposition to the appellant’s
     petition. PFR File, Tab 3.
                                        ANALYSIS
¶4        The appellant has raised a single issue on review:              whether the
     administrative judge erred in determining the weight to be given the appellant’s
     diagnosis with PTSD as a mitigating factor in upholding the agency’s penalty
     determination. PFR File, Tab 1 at 4. However, we modify the initial decision to
     further analyze whether the agency met its burden of proving the charges and
     establishing a nexus between the charges and the efficiency of the service.
     Stipulating to the facts underlying a charge is not a concession to the charge
     itself where the charge requires a legal analysis. Wrocklage v. Department of
     Homeland Security, 769 F.3d 1363, 1367 (Fed. Cir. 2014). Thus, to the extent
     the appellant stipulated to the facts underlying the battery and lack of candor
     charges, any such stipulations do not satisfy the legal analysis necessary to prove
     these charges. Because the record has been fully developed with respect to the
     charges and nexus, we may decide these issues based on the existing record.
     The agency proved its battery charge by preponderant evidence and established a
     nexus between the charge and the efficiency of the service.
¶5        The incident underlying the battery charge occurred in Florida. IAF, Tab 4
     at 41-43. The Florida criminal code states that “[t]he offense of battery occurs
     when a person: (1) Actually and intentionally touches or strikes another person
     against the will of the other; or (2) Intentionally causes bodily harm to another
     person.”   Id. at 49.   The agency relied on two specifications to support the
     battery charge: (1) that the appellant struck his wife without justification; and
     (2) that the appellant grabbed his wife and ripped her jeans without justification.
     Id. at 21. The record contains the appellant’s wife’s contemporaneous statement
     to the officers who responded to her 911 call, id. at 59, pictures of the
     appellant’s wife and her damaged cell phone, id. at 61-67, statements by the
                                                                                       4

     officers who responded to her 911 call, id. at 41-45, and an affidavit from the
     appellant stating that he did not recall hitting his wife, but also did not remember
     anything that occurred during the time period his wife states the battery took
     place, id. at 80-82.
¶6         Before the Board the appellant did not contest the battery charge.       IAF,
     Tab 15 at 5.     However, in response to the notice of proposed removal the
     appellant denied that the battery took place stating, “I never hit my wife in any
     way that was stated in the reports.” IAF, Tab 4 at 19. But he has also admitted
     that he has little memory of what occurred during the relevant time period. Id. at
     81-83, 86-87. The appellant’s memory appears to have been impaired by the
     amount of alcohol he consumed immediately preceding the incident. Id. at 87.
     We find that the record evidence supports the appellant’s wife’s description of
     having been punched, backhanded, grabbed, and having her pants ripped, and
     that, along with the observations of the officers who responded to her 911 call,
     support finding that the agency met its burden of proving the charge of battery.
     Id. at 41-45, 59.
¶7         Regarding nexus between the battery charge and the efficiency of the
     service, we note this conduct occurred off-duty. An agency may show a nexus
     between off-duty misconduct and the efficiency of the service by three means:
     (1)    a   rebuttable   presumption     in     certain   egregious   circumstances;
     (2) preponderant evidence that the misconduct adversely affects the appellant’s
     or co-workers’ job performance or the agency’s trust and confidence in the
     appellant’s job performance; or (3) preponderant evidence that the misconduct
     interfered with or adversely affected the agency’s mission.            Scheffler v.
     Department of Army, 117 M.S.P.R. 499, ¶ 10 (2012), aff’d, 522 F. App’x 913
     (Fed. Cir. 2013). Nexus may be proved by showing that an employee engaged in
     off-duty misconduct that is inconsistent with the agency’s mission and
     undermines confidence in the employee. Brown v. Department of the Navy, 229
     F.3d 1356, 1361 (Fed. Cir. 2000).            A deciding official’s declaration that
                                                                                        5

     persuasively explains why he lost confidence and trust in an employee’s job
     performance may satisfy the nexus requirement.         See Ellis v. Department of
     Defense, 114 M.S.P.R. 407, ¶ 9 (2010). The decision to remove the appellant
     states that his supervisors lost confidence in his ability to continue to function in
     his “trusted” position as a Criminal Investigator (Senior Special Agent) and that
     the appellant’s acts of violence against his spouse are against the protective
     mission of the agency.     IAF, Tab 4 at 13.     The decision also states that the
     appellant’s position requires that he act as a liaison with other law enforcement
     agencies. Id. Because local law enforcement was involved in the appellant’s
     off-duty misconduct, the misconduct could adversely affect the agency’s
     reputation with local law enforcement.      See id. We find these circumstances
     along with the testimony of the deciding official referenced in the initial
     decision, ID at 3, to be sufficient to meet the agency’s burden of establishing a
     nexus between the appellant’s off-duty misconduct and the efficiency of the
     service.
     The agency proved its lack of candor charge by preponderant evidence and
     established a nexus between the charge and the efficiency of the service.
¶8        Lack of candor is a more flexible charge than falsification and does not
     require proof of intent to deceive. Ludlum v. Department of Justice, 278 F.3d
     1280, 1284-85 (Fed. Cir. 2002).       Failure to disclose something that, in the
     circumstances, should have been disclosed in order to make the given statement
     accurate and complete can constitute a lack of candor. Id. The agency supported
     the lack of candor charge with six specifications of the appellant failing to
     disclose his history of alcohol use when asked during an investigation, on
     employment forms, and during a fitness for duty examination. IAF, Tab 4 at 21-
     22. The appellant admitted that he failed to disclose responsive information, but
     contends that his failures were the result of forgetting and not intending to
                                                                                           6

     deceive. 2 Id. at 18-19. Even if, as the appellant stated, he had no intent to
     deceive, proof of deception is not necessary to sustain a lack of candor charge.
     Ludlum, 278 F.3d at 1284-85 (“Although lack of candor necessarily involves an
     element of deception, ‘intent to deceive’ is not a separate element of that
     offense—as it is for ‘falsification.’”). Therefore we find that the agency proved
     the charge of lack of candor. We also find that there is a nexus between the lack
     of candor charge, which is based on the appellant’s repeated failure to disclose
     responsive information to his employer, and the efficiency of the service. A lack
     of candor strikes at the heart of the employer-employee relationship and directly
     impacts the efficiency of the service.          Ludlum v. Department of Justice,
     87 M.S.P.R. 56, ¶ 28 (2000), aff’d, 278 F.3d 1280 (Fed. Cir. 2002).

     Removal is a reasonable penalty for the sustained charges.
¶9         The appellant’s PTSD was not considered by the agency in determining the
     appropriate penalty because he raised it for the first time during the adjudication
     of his appeal. ID at 4. The appellant testified at length during the hearing about
     his PTSD and its effects on his behavior, including his belief that it played a role
     in his misconduct. Hearing Compact Disc (testimony of Robert Gooch). The
     administrative judge found that, even if the appellant’s PTSD were found to be a
     mitigating factor, it would not outweigh the aggravating factors supporting the
     penalty determination. ID at 4.
¶10        On review the appellant appears to argue, based on our reviewing court’s
     nonprecedential decision in Wensink v. Department of the Treasury, 356 F.
     App’x 397 (Fed. Cir. 2009), that the appeal should be remanded for the
     administrative judge to make a finding as to whether the appellant’s PTSD is
     mitigating and to reweigh the Douglas factors accordingly. PFR File, Tab 1 at 6-

     2
       The appellant also claimed that specification 3 misstated the question on the Standard
     Form 86. IAF, Tab 4 at 19. We have reviewed the record and confirm specification 3
     accurately states the question asked on the Standard Form 86. Compare id. at 22, and
     id. at 138.
                                                                                         7

  7. The Board, though, is not bound to follow such a nonprecedential decision,
  and, in any event, we find Wensink to be distinguishable. The U.S. Court of
  Appeals for the Federal Circuit found that consideration of the appellant’s
  medical condition was “conspicuously absent” from the Board’s decision in
  Wensink.     Wensink, 356 F. App’x at 399.         Unlike in Wensink, however, the
  administrative judge in this appeal did consider the appellant’s PTSD as a
  potential mitigating factor and reached a well-reasoned conclusion that it would
  not outweigh the aggravating factors in the penalty determination. ID at 4.
¶11     When the Board sustains all of the agency’s charges, the Board may
  mitigate the agency’s original penalty to the maximum reasonable penalty when
  it finds the agency’s original penalty too severe.         Chavez v. Small Business
  Administration, 121 M.S.P.R. 168, ¶ 8 (2014).           Evidence that an employee’s
  medical condition or mental impairment played a part in the charged misconduct
  is ordinarily entitled to considerable weight as a mitigating factor. Woebcke v.
  Department of Homeland Security, 114 M.S.P.R. 100, ¶ 15 (2010).                 But the
  Board will not consider a medical or mental impairment to be a significant
  mitigating factor in the absence of evidence that the impairment can be remedied
  or controlled, i.e., when the potential for rehabilitation is poor. Id. Here the
  record does not contain such evidence. 3         In fact, the appellant testified that
  though he is fully compliant with his treatment plan he cannot continue working
  as a criminal investigator because of his PTSD.               Hearing Compact Disc

  3
     In support of his petition for review, the appellant submitted a May 21, 2014 letter
  concerning his PTSD diagnosis and treatment. PFR File, Tab 1 at 9. 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). This letter predates the hearing, but was not entered into the record.
  Because the appellant has not shown that the letter, or the information it contains, was
  unavailab le before the record closed, the Board will not consider this new evidence on
  review. See 5 C.F.R. § 1201.115(d). Even if we were to consider th is new evidence, it
  is not material because, although it establishes the appellant’s diagnosis and treatment,
  it does not show the extent to which his condition has been remedied or controlled.
                                                                                       8

(testimony     of     Robert     Gooch      at    1:58:00-2:02:02).    Accordingly,   the
administrative judge properly found that, even considering the appellant’s PTSD
as a mitigating factor, the penalty of removal was reasonable and appropriate
given the weight of aggravating factors, such as the effect of his misconduct on
his ability to perform the duties of his position. ID at 4.

                    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 the United States Court of Appeals for the Federal Circuit to review this
final decision.      You must submit your request to the court at the following
address:
                               United States Court of Appeals
                                   for the Federal Circuit
                                 717 Madison Place, N.W.
                                  Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     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 United States 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 United
States     Code,     at   our    website,        http://www.mspb.gov/appeals/uscode.htm.
Additional         information      is   available        at    the   court’s   website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
                                                                            9

Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
