                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 27

                             Docket No. DC-0752-15-1058-I-1

                                 Lawrence E. Mattison,
                                        Appellant,
                                             v.
                           Department of Veterans Affairs,
                                         Agency.
                                       July 15, 2016

           Lawrence E. Mattison, Hampton, Virginia, pro se.

           Timothy M. O’Boyle, Esquire, Hampton, Virginia, 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 an initial decision that
     sustained his indefinite suspension. For the following reasons, we DENY the
     appellant’s petition for review and AFFIRM the initial decision.

                                     BACKGROUND

¶2         The appellant held the position of Housekeeping Aid (Leader) at a Veterans
     Administration Medical Center in Hampton, Virginia. Initial Appeal File (IAF),
     Tab 5 at 10. During the first half of 2015, local police arrested him on charges of
     stalking and violation of a protective order. IAF, Tab 5 at 32, 36-41, Tab 18,
                                                                                          2

     Subtab 11.       The alleged victim was another agency employee.            IAF, Tab 5
     at 43-56.
¶3            In July 2015, the agency proposed the appellant’s indefinite suspension,
     citing his arrest and stating that there was reasonable cause to believe that he
     might be guilty of a crime for which a sentence of imprisonment might be
     imposed.       Id. at 32-35.    After the appellant responded to the proposal, id.
     at 14-31, the deciding official upheld the indefinite suspension, id. at 11-13.
     Thereafter, the appellant filed the instant appeal, challenging his indefinite
     suspension. 1 IAF, Tab 1.
¶4            Based upon the written record, the administrative judge affirmed the
     appellant’s indefinite suspension. 2        IAF, Tab 28, Initial Decision (ID).   The
     appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.
     The agency has filed a response, PFR File, Tab 3, and the appellant has replied,
     PFR File, Tab 4.

                                             ANALYSIS

¶5            To sustain an indefinite suspension, the agency must show: (1) it imposed
     the suspension for an authorized reason; (2) the suspension has an ascertainable
     end, i.e., a determinable condition subsequent that will bring the suspension to a
     conclusion; (3) the suspension bears a nexus to the efficiency of the service; and
     (4) the penalty is reasonable. Sanchez v. Department of Energy, 117 M.S.P.R.
     155, ¶ 9 (2011). One of the authorized circumstances for imposing an indefinite
     suspension is when the agency has reasonable cause to believe an employee has


     1
       The agency removed the appellant in February 2016, and that matter has been
     addressed in a separate appeal. See Mattison v. Department of Veterans Affairs, MSPB
     Docket No. DC-0752-16-0350-I-1, IAF, Tab 12 at 10; Mattison, MSPB Docket No.
     DC-0752-16-0350-I-1, Initial Decision (Mar. 15, 2016).
     2
         The appellant did not request a hearing. IAF, Tab 6 at 1, Tab 8 at 2.
                                                                                          3

     committed a crime for which a sentence of imprisonment could be imposed,
     pending the outcome of the criminal proceeding or any subsequent agency action
     following the conclusion of the criminal process.        Gonzalez v. Department of
     Homeland Security, 114 M.S.P.R. 318, ¶ 13 (2010).
¶6         In his petition for review, the appellant does not present any substantive
     argument concerning the agency meeting the aforementioned burden.3 Instead, he
     reasserts several affirmative defenses.      PFR File, Tab 1 at 5-11.      As further
     discussed below, we find no merit to his arguments.

     The administrative       judge   properly    denied    the   appellant’s    retaliation
     affirmative defense.
¶7         The appellant first reasserts that his indefinite suspension was the result of
     improper retaliation for filing two appeals within the agency—an Information
     Security Office (ISO) appeal and a Freedom of Information Act (FOIA) appeal.
     PFR File, Tab 1 at 5-6, 10. The ISO appeal was, in essence, an appeal filed with
     the agency’s privacy office, in which the appellant alleged that a number of
     individuals had accessed his medical records without authorization. IAF, Tab 18,
     Subtab 10; PFR File, Tab 1 at 5-6. The FOIA appeal involved his request for
     information gathered by police for their investigation. IAF, Tab 18, Subtab 13.
¶8         The appellant did not seek to remedy whistleblowing reprisal in his ISO or
     FOIA appeals. IAF, Tab 18, Subtabs 10, 13. Therefore, his affirmative defense
     of retaliation for these appeals arises under 5 U.S.C. § 2302(b)(9)(A)(ii).        See


     3
       Although the appellant summarily asserted that the administrative judge erred in
     finding that the agency proved nexus, he failed to present any substantive argument in
     support of the claim. PFR File, Tab 1 at 9. Accordingly, we find no reason to revisit
     the administrative judge’s well-reasoned findings on that issue or on any of her other
     unchallenged findings. ID at 5-8; see generally Pararas-Carayannis v. Department of
     Commerce, 9 F.3d 955, 958 (Fed. Cir. 1993) (recognizing that an employee’s use of
     Government property and time to carry out illegal acts was sufficient for the agency to
     lose trust in him and, therefore, to establish the requisite nexus for his
     indefinite suspension).
                                                                                         4

     Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013) (observing
     that, because an appellant’s grievance did not concern remedying an alleged
     violation of 5 U.S.C. § 2302(b)(8), the Board lacked jurisdiction to consider her
     allegations of reprisal for her grievance in the context of an individual right of
     action appeal).     For an appellant to prevail on an affirmative defense of
     retaliation for activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii), if he
     does not allege reprisal for equal employment opportunity (EEO) activity
     protected under Title VII, he must show that:          (1) he engaged in protected
     activity; (2) the accused official knew of the activity; (3) the adverse action under
     review could have been retaliation under the circumstances; and (4) there was a
     genuine nexus between the alleged retaliation and the adverse action. See Warren
     v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986); cf. Savage v.
     Department of the Army, 122 M.S.P.R. 612, ¶¶ 48-51 & n.12 (2015) (effectively
     limiting the Warren standard by recognizing a different standard in cases of
     alleged reprisal for engaging in Title VII EEO activity, even if such claims could
     be construed as a prohibited personnel practice under section 2302(b)(9)(A)(ii));
     Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶¶ 12-15 & n.7 (2015)
     (noting that the statutory changes of the Whistleblower Protection Enhancement
     Act of 2012 significantly narrowed the scope of cases to which the Warren
     standard applies). To establish a genuine nexus, an appellant must show that the
     adverse action was taken because of his protected activity. Smith v. Department
     of Transportation, 106 M.S.P.R. 59, ¶ 63 (2007) (using this standard to analyze a
     pre-Savage EEO retaliation complaint); see Warren, 804 F.2d at 658.              This
     requires the Board to weigh the severity of the appellant’s alleged misconduct
     against the intensity of the agency’s motive to retaliate. Smith, 106 M.S.P.R. 59,
     ¶ 63.
¶9           The administrative judge found, inter alia, that the appellant failed to prove
     the genuine nexus element, and we agree.          ID at 9.   The appellant’s alleged
     misconduct, being arrested for violating a protective order and stalking another
                                                                                        5

      agency employee, is severe. IAF, Tab 5 at 32, 36-56; e.g., Lentine v. Department
      of the Treasury, 94 M.S.P.R. 676, ¶¶ 2, 12, 15 (2003) (finding removal was a
      reasonable penalty for intentional, repeated, and unwelcome contact with another
      agency employee).     By comparison, there is little reason to believe that the
      agency had an intense motive to retaliate for the appellant’s ISO or FOIA
      appeals. IAF, Tab 18, Subtabs 10, 13. It appears that the ISO appeal resulted in
      an acknowledgment that two individuals with the agency’s Police Service
      accessed the appellant’s health records without the authority to do so.         Id.,
      Subtab 10 at 5. Yet there is nothing else in the record to suggest, for example,
      that either appeal cast other agency officials or the agency as a whole in a
      particularly negative light. Id. The appellant correctly notes that he filed his ISO
      and FOIA appeals just a few months before the agency indefinitely suspended
      him.   PFR File, Tab 1 at 6.       Nevertheless, we agree with the administrative
      judge’s conclusion that, despite the short time period, the record does not support
      a finding of genuine nexus.        ID at 9; see Warren, 804 F.2d at 658; Smith,
      106 M.S.P.R. 59, ¶ 63. Accordingly, we find that the appellant failed to prove his
      retaliation affirmative defense.

      The appellant failed to establish a violation of 5 U.S.C. § 2302(b)(2).
¶10          The appellant next argues that the agency violated 5 U.S.C. § 2302(b)(2)
      when the deciding official considered a portion of the proposing official’s
      analysis of two Douglas factors: (1) the effect of the offense upon the appellant’s
      ability to perform at a satisfactory level and its effect upon his supervisor’s
      confidence in the appellant’s ability to perform his assigned duties; and (2) the
      notoriety of the offense or its impact upon the agency’s reputation. PFR File,
      Tab 1 at 7 (referencing IAF, Tab 5 at 34-35); see generally Douglas v. Veterans
      Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of
      factors that are relevant to determining the appropriate penalty). It is unclear
      whether the appellant is reasserting an argument he made below or presenting an
      altogether new argument. Compare IAF, Tab 18 at 10, with PFR File, Tab 1 at 7;
                                                                                           6

      see Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980)
      (recognizing that 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).
      Nevertheless, we have considered the argument and find it unavailing. See, e.g.,
      Melnick v. Department of Housing & Urban Development, 42 M.S.P.R. 93, 97-98
      (1989) (observing that parties without legal representation are not required to
      plead issues with precision), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table).
¶11           Section 2302(b)(2) prohibits agency officials from soliciting statements
      from individuals about a person under consideration for a personnel action unless
      the statement is based on personal knowledge or the records of the person
      providing it and concerns matters such as the performance, qualifications,
      character, or suitability of the individual at issue. However, as our reviewing
      court    has    explained,      section 2302(b)(2)    “relates   to   statements     or
      recommendations by outsiders, like senators or congressmen; the legislative
      objective was to forestall political or partisan interference in personnel actions.”
      Depte v. United States, 715 F.2d 1481, 1484 (Fed. Cir. 1983), overruled on other
      grounds by Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376
      n.4 (Fed. Cir. 1999). As a result, the appellant’s reliance upon section 2302(b)(2)
      is misplaced. Despite his conclusory assertion that the proposing official had no
      factual information to support his analysis of two Douglas factors, PFR File,
      Tab 1 at 7, his allegations do not support a prohibited personnel practice claim
      under section 2302(b)(2). The proposing official was not an outsider; he was an
      agency manager. IAF, Tab 5 at 32-35. Accordingly, we find that the appellant
      failed to establish a violation of 5 U.S.C. § 2302(b)(2).

      The administrative      judge     properly   denied   the   appellant’s   due   process
      affirmative defense.
¶12           The appellant next argues that the agency violated his due process rights.
      PFR File, Tab 1 at 7.        Specifically, he alleges that “the agency’s actions in
                                                                                      7

      establishing a criminal charge, the lack of agency’s candor in reference to [its]
      evidence by not discussing what was known to the agency as ‘new evidence’ and
      by not discussing the false information in the Douglas factor report or not by
      discussing any evidence at all was a due process violation.” Id. (capitalization
      corrected) (referencing IAF, Tab 18 at 11-18). We find no merit to his argument.
¶13         The essential requirements of constitutional due process for a tenured
      public employee are notice of the charges against him, an explanation of the
      evidence, and an opportunity for him to present his account of events. Cleveland
      Board of Education v. Loudermill, 470 U.S. 532, 546 (1985).         Although the
      appellant has invoked his due process rights, he has failed to adequately explain
      how they were violated. The record shows that the agency provided the appellant
      with notice of the charges underlying his indefinite suspension, an explanation,
      access to the evidence the deciding official would consider, and an opportunity to
      respond. E.g., IAF, Tab 5 at 32-35. Accordingly, we find that the administrative
      judge properly denied the appellant’s due process claim. ID at 10-11.

      The administrative judge properly denied the appellant’s harmful error
      affirmative defense.
¶14         Finally, the appellant reasserts that the agency committed harmful error.
      PFR File, Tab 1 at 7-11. The Board will not sustain an agency’s decision if an
      appellant proves the affirmative defense of harmful error in the agency’s
      application of its procedures in arriving at such decision. Doe v. Department of
      Justice, 123 M.S.P.R. 90, ¶ 7 (2015).    Harmful error cannot be presumed; an
      agency’s error is harmful only where the record shows that a procedural error was
      likely to have caused the agency to reach a conclusion different from the one it
      would have reached in the absence or cure of the error. Id.
¶15         According to the appellant, the agency committed harmful error by leaving
      him in an administrative leave status for a few months before imposing his
      indefinite suspension. PFR File, Tab 1 at 9-10; IAF, Tab 18 at 7. He also asserts
      that the agency committed harmful error by imposing the indefinite suspension
                                                                                            8

      immediately after his period of administrative leave, without any day in between.
      PFR File, Tab 1 at 8, 10-11.     In making these assertions, the appellant suggests
      that his period of administrative leave was, in essence, a paid suspension. Id.
      at 9-11. However, while a period of forced sick leave, annual leave, or leave
      without pay may amount to a suspension, paid administrative leave is not an
      adverse action appealable to the Board. 4       LaMell v. Armed Forces Retirement
      Home, 104 M.S.P.R. 413, ¶¶ 7, 9 (2007); see Abbott v. U.S. Postal Service,
      121 M.S.P.R. 294, ¶ 10 (2014) (clarifying that placement of an employee on
      enforced leave for more than 14 days constitutes an appealable, nonconstructive
      suspension). In addition, the appellant has not identified any rule or procedure
      forbidding the agency’s use of administrative leave, nor has he shown that the
      agency’s actions caused him harm.
¶16         In addition, the appellant cites 5 C.F.R. § 752.404(d) as limiting any period
      of nonduty status to 10 days. PFR File, Tab 1 at 9. However, this regulation
      permits an agency to shorten the statutory 30-day notice period for proposed
      adverse actions in cases such as this, in which an agency has reasonable cause to
      believe an employee has committed a crime for which imprisonment may be
      imposed. 5 C.F.R. § 752.404(d)(1). It does not impose a 10-day maximum for
      nonduty status. Therefore, we agree with the administrative judge’s conclusion
      that the appellant failed to prove any harmful error. ID at 10.


      4
        To the extent that the appellant intended to present this argument as a “not in
      accordance with law” defense, his claim similarly fails. PFR File, Tab 1 at 11; 5 U.S.C.
      § 7701(c)(2)(C); see generally Stephen v. Department of the Air Force, 47 M.S.P.R.
      672, 684 (1991) (recognizing that when an agency has no legal authority for taking an
      action, that action is not in accordance with law and must be reversed). Despite his
      suggestions to the contrary, the appellant’s period of administrative leave was not an
      adverse action, and it did not preclude his indefinite suspension. See generally
      Frederick v. Department of Homeland Security, 122 M.S.P.R. 401, ¶ 6 (2015)
      (recognizing that an agency may not discipline an employee twice for the
      same misconduct).
                                                                                        9

                                           ORDER
¶17         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. 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 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 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.
            If you are interested in securing pro bono representation for an appeal to
      the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
                                                                                 10

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:


______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
