                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL LEONARD,                                DOCKET NUMBER
                  Appellant,                         CH-0752-14-0301-I-3

                  v.

     DEPARTMENT OF VETERANS                          DATE: January 3, 2017
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Justin Randolph, Esquire, Chicago, Illinois, for the appellant.

           Janet M. Kyte, Esquire, and Robert Vega, Esquire, Hines, Illinois, for the
             agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his removal.      For the reasons discussed below, we GRANT the
     appellant’s petition for review, AFFIRM the administrative judge’s finding that
     the agency proved its charge of failure to follow established police procedures,

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     VACATE the administrative judge’s findings concerning specification 4 of the
     failure to perform the duties of the position charge, the reasonableness of the
     penalty, and the appellant’s affirmative defense of retaliation, and REMAND the
     case to the Board’s regional office for further adjudication in accordance with this
     Remand Order.

                                       BACKGROUND
¶2           Effective March 8, 2013, the agency removed the appellant from his
     Criminal Investigator position with the Hines Veterans Administration (VA)
     Hospital Police Service based on the charges of lack of candor, failure to properly
     perform the duties of his position, failure to follow established police procedures,
     and poor judgment as a police officer.        Leonard v. Department of Veterans
     Affairs, MSPB Docket No. CH-0752-14-0301-I-1, Initial Appeal File (IAF), Tab 8
     at 26-28, 62-65.     The appellant filed an appeal challenging his removal and
     raising an affirmative defense of retaliation for prior equal employment
     opportunity (EEO) activity. IAF, Tab 1 at 4; Leonard v. Department of Veterans
     Affairs, MSPB Docket No. CH‑0752-14-0301-I-3, Appeal File (I-3 AF), Tab 13
     at 7.    The appellant also raised, but subsequently withdrew, an affirmative
     defense of harmful error. IAF, Tab 1 at 4; I-3 AF, Tab 13 at 7.
¶3           After holding a hearing, the administrative judge issued an initial decision
     affirming the agency’s action.       I-3 AF, Tab 26, Initial Decision (ID).     The
     administrative judge did not sustain the agency’s lack of candor charge.         ID
     at 3‑5. The administrative judge merged the charge of poor judgment as a police
     officer into the charges of failure to properly perform the duties of the position
     and failure to follow established police procedures. 2 ID at 5 n.2, 16 n.8. She
     sustained the failure to properly perform the duties of the position charge based
     on one of the four specifications and the failure to follow established police

     2
       On review, neither party challenges the administrative judge’s decision to merge
     the charges.
                                                                                             3

     procedures charge based on three of the four specifications. ID at 5-19. Further,
     she found that there was a nexus between the sustained charges and the efficiency
     of the service and that removal was within the tolerable limits of reasonableness.
     ID at 22-23. Finally, she found that the appellant did not prove his affirmative
     defense of retaliation for prior EEO activity. ID at 19-21.
¶4         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 3. The agency has opposed the appellant’s petition. PFR File, Tab 5.
     The appellant has filed an untimely reply. 3 PFR File, Tab 6.

                                           ANALYSIS
     Remand is necessary for additional findings concerning whether the agency
     proved its charge of failure to properly perform the duties of the position.
¶5         The administrative judge did not sustain specifications 1 or 2 of this charge
     and the agency withdrew specification 3. ID at 5-9. The administrative judge
     sustained specification 4, in which the agency alleged that in October 2012, the
     Acting Police Chief, who was the proposing official, discussed with the appellant
     his   concerns   regarding    the    appellant’s   failure     to   perform   independent
     investigations as to Reports of Survey 4 of missing agency property, and instructed
     him that he must conduct proper investigations, including interviews of relevant
     witnesses. IAF, Tab 8 at 63. The agency alleged that the appellant continued to
     conduct    investigations    of     missing   property       without    any   independent
     investigation. Id.
¶6         The administrative judge found that the agency proved that the appellant
     failed to conduct independent investigations of missing property on multiple
     occasions after being instructed to do so.         ID at 11-12.        We agree with the

     3
       We have not considered the appellant’s reply, which was untimely filed on June 13,
     2016, more than 10 days after the agency served its response on May 31, 2016, and
     which is not accompanied by a motion showing good cause for the untimely filing. PFR
     File, Tabs 4-6; see 5 C.F.R. § 1201.114(e)-(g).
     4
       A Report of Survey is an inventory document that is generated when Government
     property is reported as lost or stolen. Hearing Transcript at 42-43, 66, 197-98, 379-80.
                                                                                      4

     appellant that this was an error because the agency only offered one example of
     his failure to independently investigate, which was an October 2012 Report of
     Survey. 5 PFR File, Tab 3 at 13‑14. The administrative judge found that it was
     much more likely than not that the appellant conducted more than one
     investigation in the period between October 2012 and January 10, 2013, when the
     agency proposed his removal.     ID at 11-12.   In so finding, she relied on the
     appellant’s general testimony “regarding the recurring nature and large number of
     these property losses and the little time he had to investigate.”       ID at 11.
     However, beyond the October 2012 Report of Survey, it is not clear from the
     record how many Reports of Survey the appellant completed after the
     October 2012 conversation or whether he conducted independent investigations in
     connection with any such Reports of Survey. Moreover, both the appellant and
     his supervisor testified that, at some point prior to the appellant’s removal,
     investigations of missing property were reassigned to the police patrol. PFR File,
     Tab 3, Hearing Transcript (HT) at 51‑52, 121.       Accordingly, we vacate the
     administrative judge’s finding that the agency proved that the appellant failed to
     conduct independent investigations on multiple occasions after October 2012.
¶7        Additionally, in sustaining specification 4, the administrative judge relied
     on the proposing official’s testimony that, during an October 2012 conversation,
     he directed the appellant to conduct independent investigations regarding Reports
     of Survey, including interviewing witnesses and showing all work leading to and
     supporting his findings, but that the appellant failed to change how he conducted
     investigations. ID at 10. The administrative judge further cited the proposing
     official’s testimony that he spoke to the appellant at the urging of the head of
     logistics, who previously had discussed these concerns with the appellant. Id.



     5
      The initial decision erroneously references this Report of Survey as being dated
     December 2012, instead of October 2012. ID at 10; IAF, Tab 9 at 91.
                                                                                         5

     The administrative judge also found that the appellant “did not dispute he failed
     to follow agency direction to conduct independent investigations.” ID at 11.
¶8        On review, the appellant contends that the administrative judge fa iled to
     consider his testimony to the contrary and make proper credibility determinations.
     PFR File, Tab 3 at 10. We agree. The record reflects that the appellant disputed
     the proposing official’s testimony concerning the substance of their October 2012
     conversation. He testified that the proposing official did not mention the need for
     him to conduct independent investigations, but rather questioned him about the
     Reports of Survey appearing redundant. HT at 119‑20. He further testified that
     the proposing official was not “abreast of the system” concerning the way Reports
     of Survey were handled and that he explained to the proposing official that, under
     the system in place, he sometimes did extensive and sometimes limited
     investigations based on information from the Board of Survey. 6 HT at 119-21.
     According to the appellant, under the system in place, the agency’s Board of
     Survey first looked at the Reports of Survey and then determined whether any
     further investigation was needed by the appellant.       IA F, Tab 8 at 46-47.    The
     appellant contends that the proposing official did not direct him to alter this
     process. Id.
¶9        The appellant also disputed that the head of logistics previously had talked
     to him about how he conducted investigations and testified that he only had
     expressed concern that the Reports of Survey be completed more quickly. HT
     at 116-17, 138-39.    The appellant further asserts that the administrative judge
     failed to consider his supervisor’s testimony that, before the arrival of the


     6
       The role and involvement of the Board of Survey in investigating missing property is
     unclear from the record. The parties dispute whether the Board of Survey investigated
     missing property, the scope of any such investigation, and whether the appellant was
     required to conduct an independent investigation after receiving a finding from the
     Board of Survey that property was lost due to inadequate inventory management
     control, as in the case of the October 2012 Report of Survey. HT at 288-97, 429-35;
     IAF, Tab 8 at 46-47.
                                                                                             6

      proposing official, there were no complaints about the appellant’s investigations
      and that the prior head of logistics had commented that the appellant’s
      investigations were detailed. PFR File, Tab 3 at 9; HT at 50-51.
¶10         Accordingly, we remand the appeal to the administrative judge to make
      credibility findings concerning whether, during the October 2012 conversation,
      the   proposing    official     directed   the   appellant   to   conduct   independent
      investigations, including witness interviews, and, if so, whether the appellant
      failed to conduct a proper investigation of the October 2012 Report of Survey.
      See, e.g., Posey v. Department of Defense, 106 M.S.P.R. 472, ¶ 13 (2007) (stating
      that the administrative judge, who heard the testimony firsthand and observed the
      demeanor of the witnesses, is in the best position to assess credibility).
¶11         The   appellant’s       remaining    arguments   concerning    this   char ge   are
      unpersuasive.     First, he argues that he was prejudiced because the deciding
      official testified regarding investigation procedures for Reports of Survey set
      forth in the national policy without producing a copy of the policy. 7 PFR File,
      Tab 3 at 10. However, the administrative judge did not rely on any testimony or
      procedures regarding the national policy in making her findings.              ID at 11.
      Further, the deciding official testified that, in sustaining this specification, she
      considered the appellant’s failure to abide by the directions of the proposing
      official to conduct independent investigations, not any alleged failure to follow
      the procedures in the national policy. HT at 384-85. Second, he argues that the
      charge is properly construed as a failure to follow instructions charge and the
      agency failed to meet its burden of proving the elements of such a charge. PFR
      File, Tab 3 at 11-13.     We find such a distinction is immaterial because the


      7
        The appellant has submitted a copy of the national policy for the first time on review.
      PFR File, Tab 3 at 476-86. We have not considered this document because the
      appellant has not shown that it was unavailable before the record closed despite his due
      diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R.
      § 1201.115(d).
                                                                                           7

      appellant’s failure to perform his duties as directed by his supervisors amounts to
      a failure to perform his positions duties.
      The administrative judge correctly found that the agency proved the charge of
      failure to follow established police procedures.
¶12         The administrative judge sustained three of the four specifications
      supporting the agency’s charge of failure to follow police procedures, which
      relate to the appellant’s failure to comply with agency policy to be in possession
      of his assigned weapon at all times while on duty. ID at 12‑18. As described in
      the initial decision, in specification 1, the agency alleged that the appellant
      violated this policy on 51 separate dates between October 2010 and July 2012,
      when he was not armed for all hours he was on duty. IAF, Tab 8 at 63. As the
      initial decision indicates, in specification 2, the agency alleged that the appellant
      violated this policy on July 2, 2012, when he responded to a felony arrest scene
      unarmed. Id. As set forth in the initial decision, in specification 3, the agency
      alleged that, after being instructed on November 16, 2012, that he must be armed
      at all times while on duty, on November 21, 2012, the appellant was not armed
      for all hours while on duty. 8 Id. at 64.
¶13         Regarding the first specification, the administrative judge found that the
      appellant admitted to being unarmed on the majority of the dates set forth in the
      specification.     ID   at 14-15.     Regarding    the   second    specification,   the
      administrative judge found that the appellant did not dispute that he was unarmed
      at the felony arrest scene on July 2, 2012.        ID at 16.      Regarding the third
      specification, the administrative judge found that the attendance records and
      weapons log indicated that the appellant was not armed for all hours while he was
      on duty on November 21, 2012. 9 ID at 17-18.

      8
        Specification 3 also charged the appellant with not being armed for all hours he was
      on duty on December 13, 2012, IAF, Tab 8 at 64, but the agency withdrew this date at
      the hearing, I-3 AF, Tab 23, Hearing Compact Disc (HCD), track 1 at 46:00.
      9
       The administrative judge found that the agency proved that the appellant violated the
      weapons policy when he was unarmed at times on December 13, 2012, despite the fact
                                                                                           8

¶14        On review, the appellant argues, for the first time, that he was not required
      to follow the weapons policies because his position description indicates that such
      policies are merely guidelines for criminal investigators. PFR File, Tab 3 at 15.
      We generally will not consider this argument because the appellant has not shown
      that he could not have raised it before the administrative judge.       See Banks v.
      Department    of   the   Air   Force,   4 M.S.P.R.   268,   271    (1980);    5 C.F.R.
      § 1201.115(d).     He also contends that the agency failed to show certain
      exceptions to the policy did not apply and the administrative judge incorrectly
      shifted the burden to him to show that they did apply. PFR File, Tab 3 at 16.
      However, the agency’s burden of proving its charges by preponderant evidence
      does not require it to show that each and every exception to the rule did not apply
      for each date. See 5 C.F.R. § 1201.4(q) (defining preponderant evidence as the
      degree of relevant evidence that a reasonable person, considering the record as a
      whole, would accept as sufficient to find that a contested fact is more likely to be
      true than untrue); see also 5 C.F.R. § 1201.56(b)(1)(ii).
¶15        Regarding specification 2, the appellant disputes, as he did below, whether
      he technically “responded” to the scene or was a “responding officer” because he
      contends that the suspects had been apprehended prior to his arrival. PFR File,
      Tab 3 at 17. He also argues that the agency failed to show that, as a criminal
      investigator, he was required to have a weapon at the scene.                 Id.   The
      administrative judge found that the relevant policy required the appellant to be in
      possession of his weapon while on duty on department property. ID at 13. The
      appellant does not dispute that he was present at the scene unarmed. Nor did he
      dispute that the incident occurred on department property. Although he testified
      that he was on the way to a funeral when he was called to the scene, HT at 137,
      the administrative judge credited the proposing official’s testimony that the



      that the agency withdrew this specification as to this date. ID at 17-18. Accordingly,
      we vacate this finding.
                                                                                       9

      appellant either should not have reported to the scene unarmed or should have
      obtained a weapon before responding, ID at 16-17.
¶16        The appellant also reiterates his argument that the agency failed to show
      that his failure to have a weapon at the scene on July 2, 2012, put others at risk
      because the suspects already had been detained.     PFR File, Tab 3 at 17.    The
      administrative judge considered this argument, but found that the appellant’s
      decision to show up at a felony arrest scene unarmed rendered him vulnerable,
      without means of defending himself and others if the situation changed, thereby
      putting himself and other people at risk.      ID at 17.   Thus, the appellant’s
      argument constitutes mere disagreement with the administrative judge’s findings,
      and does not provide a basis for reversal.   See 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 when she considered the evidence as a whole, drew appropriate
      inferences, and made reasoned conclusions); see also Broughton v. Department of
      Health & Human Services, 33 M . S . P . R . 357, 359 (1987) (same).
¶17        Lastly, we find unavailing the appellant’s contention that specification 3
      should be construed as a charge of failure to follow instructions. PFR File, Tab 3
      at 17-19. It is well settled that the Board adjudicates the charges invoked by the
      agency as described in the agency’s proposal and decision notices.      See, e.g.,
      Rackers v. Department of Justice, 79 M.S.P.R. 262, 276 (1998), aff’d, 194 F.3d
      1336 (Fed. Cir. 1999) (Table); Gottlieb v. Veterans Administration, 39 M.S.P.R.
      606, 609 (1989). We agree with the administrative judge that the agency proved
      that the appellant was not armed for all hours while on duty on November 21,
      2012. ID at 17-18. The record reflects that he worked from 8 a.m. to 4 p.m., but
      only checked out his weapon from 7:44 to 13:03. IAF, Tab 11 at 57, 66. Thus,
      he was unarmed while on duty for about 3 hours. Accordingly, the administrative
      judge properly sustained the charge based on the three sustained specifications.
      See, e.g., Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.
      1990) (finding that, when more than one event or factual specification supports a
                                                                                           10

      single charge, the agency need not prove all of the specifications; rather, proof of
      one or more of the supporting specifications is sufficient to sustain the charge).
      We vacate the administrative judge’s penalty analysis and remand the appeal for
      reconsideration of the reasonableness of the penalty.
¶18         The administrative judge deferred to the agency’s decision to remove the
      appellant, relying on the deciding official’s testimony that she would have
      removed the appellant even absent the lack of candor charge. ID at 22-23. On
      review, the appellant argues that the administrative judge should have considered
      whether removal was reasonable in light of the sustained charges and
      specifications and mitigating factors. 10 PFR File, Tab 3 at 24-30. We agree.
¶19         When an agency fails to prove all of its charges, the administrative judge
      must consider carefully whether the sustained charges merit the penalty imposed
      by the agency. Reid v. Department of the Navy, 118 M.S.P.R. 396, ¶ 24 (2012).
      In such circumstances, if the agency does not indicate that it desires a lesser
      penalty to be imposed on fewer charges, the Board may mitig ate to the maximum
      reasonable penalty if a careful balancing of the mitigating factors warrants, or the
      Board may impose the same penalty imposed by the agency based on justification
      of that penalty as the maximum reasonable penalty after balancing those f actors.
      Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999); Parker v. U.S. Postal
      Service, 111 M.S.P.R. 510, ¶ 6, aff’d, 355 F. App’x 410 (Fed. Cir. 2009).            An
      agency’s failure to prove all of its supporting specifications may require, or
      contribute to, a finding that the agency’s penalty is not reasonable. See Payne v.
      U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996).
¶20         Here, the lack of candor charge was not sustained, and three of the four
      specifications underlying the failure to properly perform the duties of the position

      10
         The appellant also argues that the agency failed to prove a nexus between the
      sustained misconduct and the efficiency of the service because there is no clear
      relationship between the sustained specifications and his job duties. PFR File, Tab 3
      at 21-24. We find that the appellant’s assertions on review do not demonstrate error in
      the administrative judge’s well-reasoned analysis on this point. ID at 22.
                                                                                      11

      charge and one of the four specifications underlying the failure to follow
      established police procedures charge were not sustained or withdrawn.          The
      agency also withdrew one of the dates underlying specification 3 of its failure to
      follow established police procedures charge. Although t he administrative judge
      cited the deciding official’s testimony that she would have removed the appellant
      absent the lack of candor charge, such testimony does not take into consideration
      the fact that the agency failed to prove or withdrew many of the specifications in
      support of the sustained charges.    Thus, it does not establish that the agency
      would have imposed the same penalty for the sustained specifications because
      there is a significant difference between the misconduct that the agency specified
      and the misconduct ultimately sustained.          Accordingly, on remand, the
      administrative judge must determine the maximum reasonable penalty appropriate
      for the sustained charges and specifications.
¶21        In assessing the reasonableness of the penalty, the administrative judge
      should consider such factors as the nature and seriousness of the offense, the
      employee’s past disciplinary record, the consistency of the penalty with the
      agency’s table of penalties, and the consistency of the penal ty with those imposed
      on other employees who engaged in similar misconduct.             See O’Lague v.
      Department of Veterans Affairs, 123 M.S.P.R. 340, ¶ 18 (2016); Douglas v.
      Veterans Administration, 5 M.S.P.R. 280, 305 (1981).           In particular, the
      administrative judge should consider whether the appel lant’s failure to have his
      weapon in his possession at all times while on duty prior to November 16, 2012,
      the dates underlying specifications 1 and 2 of the agency’s failure to follow
      police procedures charge, constituted a common practice, and whether other
      employees were disciplined for such violations.
¶22        It appears undisputed that the agency’s weapons policy, which required
      officers to be armed at all times while on duty, was not strictly observed or
      enforced prior to November 16, 2012, several months after the proposing official
      became the Acting Police Chief.     The proposing official testified that after he
                                                                                      12

      became Acting Police Chief in May 2012, he observed that the agency’s weapons
      policy was not being followed and a few officers did not check out their firearms
      on a daily basis. HT at 175, 187. As a result, on November 16, 2012, he sent an
      email to seven officers, including the appellant, expressing as much. HT at 187;
      IAF, Tab 12 at 5. In his email, he stated, “[m]any of you rarely arm up upon
      arriving to work” and indicated that moving forward the policy would be enforced
      and future violations would result in discipline. IAF, Tab 12 at 5.
¶23        The proposing official further testified that he did not discipline or propose
      discipline for any other officer for violating this policy. HT at 335. The deciding
      official concurred that she had not dealt with any disciplinary actions relating to
      any officer being disciplined for violating the weapons policy, but that she
      would not have seen disciplinary actions of less than a 14-day suspension. HT
      at 445‑46.   The appellant’s supervisor also testified that the weapons policy
      was not strictly followed prior to the proposing official’s arrival and he was not
      aware of anyone who had ever been disciplined for failing to follow it. HT at 46.
      Notwithstanding these circumstances, the agency charged the appellant with
      violating the weapons policy on numerous dates prior to November 16, 2012,
      when it began enforcing the policy. IAF, Tab 8 at 63.
¶24        The appellant raised a claim of disparate penalties below, which the
      administrative judge acknowledged in the prehearing order, I -3 AF, Tab 13 at 6-7,
      but did not address in the initial decision.   The record does not contain facts
      sufficient to ascertain what penalty, if any, the agency has imposed for conduct
      similar to the sustained charges.     Lewis v. Department of Veterans Affairs,
      113 M.S.P.S. 657, ¶ 15 (2010). Accordingly, on remand, the administrative judge
      shall provide the parties an opportunity to submit supplemental evidence and
      argument concerning the circumstances and factors relevant to the determination
      of a reasonable penalty.
                                                                                       13

      The administrative judge failed to assess all relevant evidence concerning the
      appellant’s affirmative defense of retaliation.
¶25         The administrative judge found that the appellant failed to provide any
      direct or circumstantial evidence of retaliation for his prior EEO activity; namely
      the filing of a formal complaint of discrimination on February 25, 2013, 11 because
      both the proposing and deciding officials testified that they were not aware of this
      activity. ID at 20-21. The administrative judge further found that the appellant
      provided no other evidence of suspicious timing, ambiguous statements, behavior
      toward or comments directed at other employees with prior EEO activity, or other
      facts from which an inference of retaliatory intent might be drawn. ID at 21.
¶26          On review, the appellant contends that the administrative judge improperly
      found that the proposing and deciding officials were not aware of his prior EEO
      activity.   PFR File, Tab 3 at 20.     The record contains conflicting evidence
      concerning whether the proposing official was aware of the appellant’s prior EEO
      activity.   The appellant testified that he filed an EEO complaint in mid-2012,
      concerning the lack of a proper investigation of an incident between him and a
      coworker who had threatened to kill him. HT at 95, 141-44. According to the
      appellant, the proposing official was aware of his 2012 EEO complaint because
      he participated in efforts to informally resolve it through mediation. HT at 143.
      The appellant’s supervisor testified that he participated in a mediation of the
      appellant’s 2012 EEO complaint and discussed the appellant’s requested
      settlement with the proposing official. HT at 56-58. According to the appellant’s
      supervisor, the proposing official rejected the appellant’s proposed settlement and
      removed the appellant’s supervisor from further participation in the mediation.
      HT at 57-58. The proposing official, however, testified that he was not aware of
      the appellant’s 2012 EEO activity. HT at 325-27.



      11
        The initial decision references this EEO complaint as being filed on February 25,
      2013, ID at 20, but it was filed on February 26, 2013, IAF, Tab 27 at 128, 132.
                                                                                         14

¶27        The appellant also filed an EEO complaint on February 26, 2013, which he
      subsequently amended to include his removal.            IAF, Tab 27 at 128.       The
      proposing official was aware of this EEO complaint and provided testimony in
      connection with it.    Id. at 129; HT at 315.     The proposing official, however,
      could not have proposed the appellant’s removal in retaliation for the appellant’s
      February 26, 2013 EEO complaint because the record reflects that the appellant
      did not initiate contact with an EEO counselor regarding this complaint until
      February 8, 2013, after his removal already had been proposed on January 10,
      2013. IAF, Tab 8 at 62, Tab 27 at 132.
¶28        We agree that the administrative judge improperly found that the deciding
      official was unaware of the appellant’s prior EEO activity because she did not
      testify that she had no knowledge of such activity. PFR File, Tab 3 at 20; ID
      at 21. Rather, she testified that she was aware that the appellant had alleged in
      his response to the proposed removal that the proposing official was retaliating
      against him for his prior EEO activity. HT at 458. Accordingly, on remand, the
      administrative judge shall assess all relevant testimony concerning whether the
      proposing and deciding officials were aware of the appella nt’s prior EEO activity
      and make necessary credibility determinations to resolve conflicting testimony.
¶29        On review, the appellant also argues that the adminis trative judge failed to
      analyze all relevant evidence concerning his retaliation claim. 12 PFR File, Tab 3
      at 20-21.   Significantly, he contends that the administrative judge failed to
      consider evidence that the proposing official was found to have committe d
      reprisal, as well as evidence that, shortly after he became Acting Police Chief, the


      12
         We have not considered the appellant’s argument raised for the first time on review
      that his removal was due to race discrimination. PFR File, Tab 3 at 19-20. Although
      the appellant alleged race discrimination in his EEO complaint, IAF, Tab 27 at 128, he
      did not raise an affirmative defense of race discrimination before the administrative
      judge, IAF, Tab 1 at 4; I-3 AF, Tab 13 at 7-8, and he has not shown that his claim is
      based on any new and material evidence that was not previously available despite his
      due diligence, see Banks, 4 M.S.P.R. at 271; 5 C.F.R. § 1201.115(d).
                                                                                        15

      proposing official had asked for a list of names of officers who had engaged in
      prior EEO activity. Id. at 7, 21. Based on our review of the record, we agree
      with the appellant that the initial decision did not adequately summarize the
      evidence relating to his retaliation claim. See Spithaler v. Office of Personnel
      Management, 1 M.S.P.R. 587, 589 (1980) (stating that an initial decision must
      identify all material issues of fact and law, summarize the evidence, resolve
      issues of credibility, and include the administrative judge’s conclusions of law
      and his legal reasoning, as well as the authorities on which that reasoning rests).
¶30         The record contains a copy of a final agency decision regarding the
      appellant’s February 26, 2013 EEO complaint. IAF, Tab 27 at 128-50. In this
      complaint, the appellant alleged that he was subjected to discrimin ation and
      retaliation from May 2012 until he was removed on March 8, 2013, when the
      proposing official made derogatory statements about the EEO process, failed to
      prevent interaction between the appellant and a coworker who made a death threat
      against him, issued him a letter of inquiry accusing him of defrauding the
      Government by claiming overtime for hours he did not work, unjustly accused
      him of violating the agency’s weapon’s policy, while not questioning other
      officers who had engaged in the same conduct, and removed him. Id. at 128-32.
¶31         In its final agency decision, the agency determined that the proposing
      official had engaged in “per se reprisal” by expressing hostility toward the EEO
      process.   Id. at 138-41.   The agency found that, during supervisory meetings,
      which the appellant attended, the proposing official made statements to the effect
      that he “didn’t care about EEO [complaints]” and that he would “fight them tooth
      and nail.” Id. at 130, 138-41. At the hearing, the appellant’s supervisor testified
      as to having heard the proposing official make comments to this effect. HT at 53.
      The appellant’s supervisor also testified that, in the spring of 2012, shortly after
      the proposing official became the Acting Police Chief, the prop osing official
      asked him for a list of people who “came back after . . . their EEO [complaints]
      were settled with the court system or MSPB.” HT at 53-55. The administrative
                                                                                     16

      judge found that the appellant did not provide any evidence of behavior toward or
      comments directed at employees with prior EEO activity without mentioning any
      of this evidence.
¶32         The appellant also argued below that the proposing official was searching to
      find reasons to fire him and intentionally charged him with misconduct that he
      knew he could not prove in retaliation for the appellant’s prior EEO activity.
      I‑3 AF, Tab 23, Hearing Compact Disc (HCD), track 2. First, he alleged that, in
      his response to the notice of proposed removal, he pointed out numerous factual
      errors in the proposal notice, but the agency ignored them and sustained his
      removal. I-3 AF, Tab 12 at 2‑3. He also claimed that the agency failed to prove
      or withdrew many of its specifications. I-3 AF, Tab 23, HCD, track 2.
¶33         Second, he argued that the proposing official retaliated against him by
      charging him with violating the agency’s weapons policy because he did not
      discipline any of the other similarly situated employees who also had violated the
      policy.   He contended that the agency offered no explanation as to why it
      disciplined him, but did not discipline other employees. I-3 AF, Tab 23, HCD,
      track 2; IAF, Tab 27 at 131. The appellant also contends that the administrative
      judge failed to consider that the agency was searching for reasons to fire him as
      evidenced by the fact that it charged him with failing to be armed at a felony
      arrest scene on July 2, 2012, an incident that occurred over 6 months prior to his
      proposed removal, and for which he was not disciplined at the time.            HT
      at 162‑63; PFR File, Tab 3 at 16.
¶34         Third, he argued that the proposing official intentionally assigned the same
      coworker who had threatened to kill the appellant, and about whom the appellant
      filed his 2012 EEO complaint, to investigate the charges knowing that he would
      be biased against the appellant. I-3 AF, Tab 12 at 1-2, Tab 23 HCD, track 2. The
      appellant contended that the evidence established that this coworker did not
      conduct a legitimate investigation, and that notwithstanding numerous problems
                                                                                            17

      with his report of investigation, the agency relied upon an incomplete draft report
      to remove the appellant. I-3 AF, Tab 23, HCD, track 2.
¶35          The investigation conducted by the coworker related to specification 1 of
      the agency’s charge of failure to properly perform job duties in which the agency
      alleged that the appellant failed to follow up on altered receipts provided to him
      regarding an investigation of theft. IAF, Tab 8 at 62, 72-75. The administrative
      judge did not sustain this specification, finding that the report drafted by the
      coworker, and relied up by the agency to remove the appellant, was an incomplete
      preliminary draft, not a final draft, it was dated the same date that the coworker
      had been appointed to look into the appellant’s handling of the incident, but it s
      text referred to investigatory work completed by the coworker on subsequent
      dates, and it was missing words or sentences and at least one page. 13 ID at 6-8.
      The administrative judge further found that this report did not represent a
      thorough examination of the matters at issue, and that the coworker came to the
      cursory conclusion that the appellant mishandled the investigation, not on any
      factual basis, but based on his “many years of education, experience and
      knowledge,” which she found too speculative. Id. at 7.
¶36         In light of the foregoing, we remand the appeal for further consideration of
      the appellant’s affirmative defense. On remand, the administrative judge shall
      assess all relevant evidence and make new findings as to whether the appellant
      proved that his removal was a result of retaliation.

                                             ORDER
¶37         For the reasons discussed above, we remand this case to the regional office
      for further adjudication.      On remand, the administrative judge shall make
      credibility findings to determine whether the agency proved its failure to perform

      13
         The coworker who drafted the report testified that the report in the agency file was
      his preliminary draft and, at the hearing he produced a copy of the final report. I-3 AF,
      Tab 22, HCD, track 4 at 45:00; compare IAF, Tab 8 at 72-75, with I-3 AF, Tab 25
      at 1‑5.
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the duties of the position charge and analyze all relevant evidence to determine
whether the appellant proved his affirmative defense of retaliation.         If the
administrative judge finds that the appellant has not proven his affirmative
defense, she shall determine the maximum reasonable penalty for the sustained
misconduct, considering all facts, circumstances, and mitigating factors .     She
shall allow the parties an opportunity to submit brief ing concerning the
circumstances and factors relevant to the determination of a reasonable penalty.




FOR THE BOARD:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
