                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ERIC ROSE,                                      DOCKET NUMBER
                         Appellant,                  AT-0752-12-0063-B-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: September 17, 2014
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL 1

           Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.

           Stacey Turner Stokes, Esquire, Fort Lee, Virginia, for the agency.


                                           BEFORE

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


                                      REMAND ORDER

¶1         The appellant has filed a petition for review of the remand initial decision,
     which sustained his removal for absence without leave (AWOL). For the reasons
     discussed below, we GRANT the appellant’s petition for review and REMAND



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the case to the regional office for further adjudication in accordance with this
     Order.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant was a WG-04 Store Worker for the Defense Commissary
     Agency, a component of the Department of Defense. Initial Appeal File (IAF),
     Tab 6, Subtab 4A.       The appellant’s duty station was the Gulfport Naval
     Construction Battalion Center (NCBC), a Department of the Navy (Navy)
     installation of which the Defense Commissary Agency is a tenant.        Id.   On
     June 10, 2011, Naval Military Police issued the appellant criminal tickets for
     carrying a concealed weapon (a fixed blade knife) and making a disturbance in a
     public place. Remand Appeal File (RAF), Tab 11 at 97, 108-09. Effective the
     same day, the Navy barred the appellant from entering the NCBC under threat of
     fine and imprisonment. IAF, Tab 6, Subtab 4J. The reasons for the barment were
     (1) carrying a concealed weapon, and (2) threats of violence against persons
     inside the commissary. Id.
¶3        Because he was unable to enter the NCBC, the appellant was unable to
     report for duty. The agency began carrying him in AWOL status. IAF, Tab 6,
     Subtab 4L.    The appellant filed a constructive suspension appeal, Rose v.
     Department of Defense, MSPB Docket No. AT-0752-11-0814-I-1, IAF, Tab 1,
     and the administrative judge reversed the action, finding that the agency had
     constructively suspended the appellant, id., Tab 18.
¶4        During the pendency of that appeal, on October 21, 2011, the agency
     removed the appellant based on two charges: (1) “Absence from Duty Occasioned
     by your being Barred from entering the Gulfport Naval Construction Battalion
     Center,” and (2) “Absent without Leave.” IAF, Tab 6, Subtabs 4A, 4D, 4H. The
     appellant filed the instant appeal, IAF, Tab 1, and the administrative judge
     reversed the removal, IAF, Tab 10, Initial Decision (ID) at 2, 7. He merged the
     charges and found, based on the same reasoning that he employed in the
                                                                                      3

     constructive suspension appeal, that the agency failed to show that it properly
     carried the appellant in AWOL status during the charged dates. ID at 2, 4-7. The
     agency filed petitions for review in both cases.
¶5        The Board reversed the initial decision in the constructive suspension
     appeal and dismissed it for lack of jurisdiction. Rose v. Department of Defense,
     118 M.S.P.R. 302 (2012). It found that the appellant did not meet the standard
     established in Hollingsworth v. Defense Commissary Agency, 82 M.S.P.R. 444
     (1999), for determining whether an employee being barred by one governmental
     entity from being able to report for duty to another governmental entity has been
     constructively suspended. Rose, 118 M.S.P.R. 302, ¶¶ 4, 10-14. In the instant
     removal appeal, the Board vacated the initial decision and remanded for further
     adjudication. IAF, Tab 12, Remand Order at 2, 5. The Board found that the
     initial decision could not stand to the extent that it was based on the same faulty
     analysis that the administrative judge employed in the constructive suspension
     appeal. Remand Order at 4. However, the Board found that it could not issue a
     final decision on review because the appellant had withdrawn his affirmative
     defense of retaliation for protected activity and waived his right to a hearing
     conditioned on a finding reversing the removal action. Remand Order at 4-5. It
     therefore remanded the appeal to give the appellant an opportunity to request a
     hearing and pursue his affirmative defense. Remand Order at 5.
¶6        On remand, the appeal was assigned to a different administrative judge,
     who conducted a hearing and sustained the removal.        RAF, Tab 29, Remand
     Initial Decision (RID) at 2, 9. He found that the agency proved its charge of
     AWOL, the appellant received due process, the appellant did not prove his
     retaliation defense, and the action promoted the efficiency of the service. RID at
     2-9. The appellant has filed a petition for review, Remand Petition for Review
     (RPFR) File, Tab 1, and the agency has filed a response, RPFR File, Tab 3.
                                                                                         4

     The agency established a nexus between the charge and the efficiency of the
     service.
¶7        On review, the appellant argues that it does not promote the efficiency of
     the service to remove an employee who has done nothing wrong. RPFR File, Tab
     1 at 13-16.   He does not dispute that he was AWOL, but he argues that the
     barment underlying his AWOL was faulty. Id.
¶8        The details of the events leading up to the appellant’s arrest and barment
     are as follows. On June 7, 2011, the appellant complained to a coworker that his
     immediate supervisor intended to “write him up” for arriving at work early and
     working through lunch. He told the coworker that if the agency management did
     not handle it appropriately, he would take matters into his own hands and “heads
     are going to roll.”     Hearing Transcript (HT) at 244-45 (testimony of the
     appellant). Two days later, on June 9, 2011, the coworker met in person with the
     Store Director, the appellant’s third-line supervisor, and registered several
     complaints about the appellant, including that the appellant had made this “heads
     are going to roll” comment. Id. at 97-101 (testimony of the Store Director). The
     coworker stated that he was concerned by this “threat” because the appellant
     owned a gun. 2 Id. at 99 (testimony of the Store Director). The Store Director
     relayed this information by email to the Zone Manager, the appellant’s
     fourth-level supervisor.    RAF, Tab 11 at 32.        However, the Store Director
     recharacterized the appellant’s “heads are going to roll” comment as follows:
           The supposed comments were that [the appellant] was getting fed up
           with this place, that management head’s [sic] were going to roll, and
           if [the agency] did not fix it he has a gun and can take care of it
           himself.


     2
       There appears to be some dispute about whether the appellant had ready access to a
     firearm at this time. HT at 245-46, 293-95 (testimony of the appellant). It is
     undisputed, however, that the appellant never mentioned any firearm in connection with
     his “heads are going to roll” comment; this was merely additional information
     volunteered to the Store Director by the appellant’s coworker. Id. at 99 (testimony of
     the Store Director), 245, 281 (testimony of the appellant); RAF, Tab 11 at 101.
                                                                                      5

      Id. The following day, June 10, 2011, the Zone Manager telephoned the Store
      Director and told him to report the matter to base security. HT at 115 (testimony
      of the Store Director).    The Store Director did so, and gave base security
      substantially the same account that he had given the Zone Manager. Id. at 115-16
      (testimony of the Store Director).
¶9         Later that morning, while the appellant was working behind the store, he
      was approached by several police officers with weapons drawn. They asked him
      whether he had any concealed weapons. HT at 250 (testimony of the appellant).
      The appellant indicated that he had two knives—one clipped to the outside of his
      pants pocket, and one on a lanyard around his neck. Id. The officers also took a
      statement from the appellant’s coworker who made the original complaint about
      the appellant’s alleged threat. RAF, Tab 11 at 101. The officers then issued the
      appellant two tickets—one for carrying a concealed deadly weapon and one for
      causing a disturbance in a public place. Id. at 108-09. That afternoon, the police
      officers compiled information about the incident and presented it to the acting
      commander of the Gulfport NCBC. HT at 195-96 (testimony of the acting base
      commander).     RAF, Tab 11 at 97.        The acting commander reviewed the
      information and issued an order barring the appellant from entering Gulfport
      NCBC upon threat of fine and imprisonment. HT at 196 (testimony of the acting
      base commander); IAF, Tab 6, Subtab 4J. The appellant then was escorted off
      base. RAF, Tab 11 at 97.
¶10        Eventually, on October 18, 2011, the Assistant United States Attorney
      decided not to prosecute the appellant and instead moved to dismiss the charges.
      IAF, Tab 8, Subtab 6. The appellant’s attorney forwarded this information to the
      Gulfport NCBC commanding officer.        Id.   The same acting commander who
      issued the initial barment order considered the information but found it
      insufficient to prove that the charges underlying the barment were, in fact,
      dismissed. He therefore declined to modify or rescind the order. HT at 201-09
      (testimony of the acting base commander).      On October 21, 2011, before the
                                                                                        6

      appellant’s attorney could get a copy of the court order dismissing the charges,
      the agency removed the appellant. 3 IAF, Tab 6, Subtabs 4A, 4D.
¶11        The record shows that, during the barment period, the commanding officer
      asked the Store Director whether he had any comments regarding the barment.
      HT at 119 (testimony of the Store Director).      The Store Director declined to
      comment, informing the commanding officer that he did not want to influence his
      decision. Id. However, when the commanding officer asked the Store Director
      whether any store employees were in fear of the appellant, the Store Director
      replied in the affirmative. Id. The record also shows that the appellant needed a
      knife for opening hundreds of boxes every day—a major part of his job. HT at
      253-54 (testimony of the appellant).        The record further shows that the
      commissary at which the appellant worked offers similar knives for sale. Id. at
      256-57 (testimony of the appellant); RAF, Tab 18 at 60.
¶12        The appellant has presented a substantial case that the barment order
      underlying the AWOL charge was problematic. The appellant never threatened
      anyone. He merely stated that “heads are going to roll.” Although this statement
      might be indelicate, we find that it is a hyperbolic idiom that no reasonable
      person would construe as an actual threat.       See Metz v. Department of the
      Treasury, 780 F.2d 1001, 1002-03 (Fed. Cir. 1986) (to determine whether words
      constituted a threat, the Board must use “the connotation which a reasonable
      person would give to the words”) (quoting Meehan v. U.S. Postal Service,
      718 F.2d 1069, 1075 (Fed. Cir. 1983)). Nor did the appellant mention a gun in
      connection with his statement. The Store Director added this embellishment in
      his report to base security. When the appellant was eventually barred, it was on
      the basis that he engaged in this hyperbole and was carrying a tool that he used
      for his job and that was available for purchase at Gulfport NCBC. Finally, the
      criminal charges against the appellant were dismissed but not in time to offer
      3
       The record indicates that it would have taken “a few weeks” to obtain a copy of the
      court’s order. IAF, Tab 8, Subtab 6 at 6.
                                                                                       7

      sufficient proof of the matter to the Navy, so that the barment might be modified
      or lifted.
¶13         Nevertheless, the appellant was not removed for the conduct underlying the
      barment. He was removed for AWOL arising out of the barment. IAF, Tab 6,
      Subtabs 4A, 4D, 4H.       We agree with the administrative judge that an order
      barring an individual from a military installation is committed to the sound
      discretion of the military base commander, and that the Board lacks the authority
      to review such an order. RID at 8; see Department of Navy v. Egan, 484 U.S.
      518, 529-330 (1988) (unless Congress specifically has provided otherwise, courts
      traditionally have been reluctant to intrude upon the authority of the executive in
      military and national security affairs); United States v. Albertini, 472 U.S. 675,
      690 (1985) (a commanding officer has broad authority to issue a barment letter,
      as long as the letter is not patently arbitrary or discriminatory); Cafeteria and
      Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886,
      893-96 (1961) (commanding officers traditionally have exercised unfettered
      discretion in excluding civilians from their area of control). The Board implicitly
      recognized this in Hollingsworth, 82 M.S.P.R. 444, ¶ 7, when it found that an
      analysis of a constructive suspension based on such a barment must focus on the
      actions and obligations of the employing agency—not on the actions of the
      military department or the propriety of the barment itself.
¶14         To show that an adverse action is taken for the efficiency of the service, an
      agency must establish a nexus between the proven charge and the efficiency of
      the service.     Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 18
      (2013).      It is well-established that a proven charge of AWOL satisfies that
      requirement.     Bryant v. National Science Foundation, 105 F.3d 1414, 1417 (Fed.
      Cir. 1997) (the nexus between the charged offense and the efficiency of the
      service is automatic when the charged offense is AWOL). The agency was not
      required to establish a nexus between the efficiency of the service and the
      conduct giving rise to the barment but which was not part of the charge.
                                                                                          8

      The administrative judge correctly applied Hollingsworth to the facts of this case.
¶15         The appellant argues that the administrative judge should not have used the
      four-part test set forth in Hollingsworth, 82 M.S.P.R. 444, for analyzing whether
      the agency initiated his absence and in any event, the administrative judge applied
      Hollingsworth incorrectly. RPFR File, Tab 1 at 24-27.
¶16         As to the applicability of Hollingsworth to the instant appeal, we agree with
      the appellant that the Board’s jurisdiction is not in question and that
      Hollingsworth is not on point to the extent that it pertains to the Board’s
      jurisdiction over a constructive suspension appeal. RPFR File, Tab 1 at 24-25.
      However, Hollingsworth is instructive on the issue of whether the agency
      properly carried the appellant in an AWOL status. 82 M.S.P.R. 444, ¶ 7; see
      Boscoe v. Department of Agriculture, 54 M.S.P.R. 315, 325 (1992) (to prove an
      AWOL charge, an agency must show that the employee was absent from duty, and
      either that his absence was not authorized or that his request for leave was
      properly denied).   In any event, the appellant has not advanced an alternative
      analytical framework, and he also has conceded the AWOL charge. RPFR File,
      Tab 1 at 14; RAF, Tab 24 at 4.
¶17         As to the analysis of the Hollingsworth factors, we disagree with the
      appellant that the Board’s penalty jurisprudence amounts to an “agency policy,
      rule, regulation, contractual provision, or other authority to offer assistance to the
      employee with the circumstances beyond his control,” thus meeting the third part
      of the test. 82 M.S.P.R. 444, ¶ 7; RPFR File, Tab 1 at 24-25. If the Board’s
      penalty jurisprudence, which applies equally to all respondent agencies, were
      sufficient to satisfy this factor, then this factor would be satisfied in every case,
      and there would have been no need for the Board to list it as an element of a
      constructive suspension under these circumstances. Moreover, the Board already
      decided in the appellant’s related constructive suspension appeal, Rose,
      118 M.S.P.R. 302, ¶¶ 9-13, that he did not satisfy the Hollingsworth factors, and
      we find that the appellant is collaterally estopped from relitigating the issue in the
                                                                                        9

      instant appeal. See Killeen v. Office of Personnel Management, 558 F.3d 1318,
      1323 (Fed. Cir. 2009) (collateral estoppel bars litigation of an issue if the
      identical issue was actually litigated and necessarily decided in a prior case where
      the interests of the party to be precluded were fully represented). In any event, as
      noted above, supra ¶ 16, the appellant has conceded the AWOL charge.

      The appellant did not prove his affirmative defense of retaliation for protected
      activity.
¶18        The appellant challenges the administrative judge’s analysis of his
      affirmative defense    of   retaliation for protected activity under 5 U.S.C.
      § 2302(b)(9). RPFR File, Tab 1 at 27-30; RID at 6-7. As relevant here, that
      section prohibits any employee who has the authority to take, direct others to
      take, recommend, or approve any personnel action, to take any personnel action
      against any employee because of the exercise of any appeal, complaint, or
      grievance right granted by any law, rule, or regulation. 5 U.S.C. § 2302(b)(9)(A).
      Because the record on this issue is complete, we proceed to the ultimate question
      of whether the appellant has met his overall burden of proving illegal retaliation.
      See Marshall v. Department of Veterans Affairs, 111 M.S.P.R. 5, ¶ 16 (2008).
¶19        The appellant filed a host of complaints over the years, including
      complaints to the Office of Special Counsel, RAF, Tab 18, 254-65, the
      Occupational Safety & Health Administration, id. at 278-81, the Inspector
      General, id. at 285-86, and the Defense Commissary Agency Hotline, id. at
      289-90, as well as equal employment opportunity (EEO) complaints, id. at
      97-100, 242. Without deciding whether all of these activities are covered under
      5 U.S.C. § 2302(b)(9)(A), we find that at least some of them are—in particular,
      the EEO complaints. See Smith v. Department of Agriculture, 64 M.S.P.R. 46,
      62-63 (1994) (filing an EEO complaint is protected activity under 5 U.S.C.
      § 2302(b)(9)). In addition, the proposing official, the deciding official, and the
      Store Director were all aware of at least some of the appellant’s complaints.
      RPFR File, Tab 1 at 28; RAF, Tab 18 at 97-100, 242; HT at 38 (testimony of the
                                                                                      10

      proposing official), 72-76 (testimony of the deciding official), 96 (testimony of
      the Store Director).
¶20         For the following reasons, however, we agree with the administrative judge
      that the appellant has not established a nexus between his protected activity and
      his removal, the personnel action at issue in this appeal. RID at 7. In deciding
      this issue, the Board will weigh the seriousness of the proven charge against the
      relevant officials’ motive to retaliate.    Crawford-Graham v. Department of
      Veterans Affairs, 99 M.S.P.R. 389, ¶ 26 (2005).      In this regard, we find that
      agency management in general had a motive to retaliate against the appellant.
      The appellant had a reputation for filing complaints, and managers sometimes
      discussed this fact among themselves, at least in the context of trying to resolve
      the complaints.    HT at 76 (testimony of the deciding official).     There is no
      evidence that the deciding official was the subject of any of the appellant’s
      complaints, so his motive to retaliate would be relatively small, arising only from
      the administrative burden that the complaints placed on him and the poor
      reflection that they might have on the operations under his control.           The
      proposing official, however, had a strong motive to retaliate because she was the
      subject of a pending EEO complaint by the appellant at the time she proposed his
      removal.     RAF, Tab 18 at 97-100; HT at 10-11 (testimony of the proposing
      official).
¶21         Nevertheless, the proven charge was very serious. The appellant had been
      AWOL for nearly 3 months when his removal was proposed, with no reliable
      indication that he would ever be able to return to duty. IAF, Tab 6, Subtab 4H.
      His continued absence caused an additional burden to his coworkers, who had to
      work extra hours in order to make up for the time that the appellant was missing.
      HT at 18-19 (testimony of the proposing official). Under those circumstances, we
      find it more likely than not that the proposing official would have taken action
      against the appellant even if she had no retaliatory motive. Furthermore, as noted
      above, the proposing official waited a significant period of time after the
                                                                                           11

      appellant’s barment to propose his removal. This does not lend itself to a finding
      that she seized the barment as an opportunity to avenge herself or to rid herself of
      a troublesome employee. Rather, it suggests that she waited, despite the attendant
      disruption in the workplace, to see if the appellant would be able to return to
      work before she determined to propose his removal. As for the deciding official,
      considering his lesser motive to retaliate in conjunction with the circumstances
      discussed above, we find that his removal decision was probably not an act of
      retaliation.
¶22         As for the Store Director, his role in the removal was only indirect. There
      is no evidence that he had any discussions with or otherwise influenced the
      proposing or deciding officials in this matter. However, his original, inaccurate
      report to base security set all of these events in motion, and he later declined to
      take the opportunity that the base commander presented him to influence the
      Navy to allow the appellant to return to work. Supra, ¶ 11. Furthermore, the
      agency failed to advance any nonretaliatory explanation for why the Store
      Director reported inaccurate information to base security.           The appellant thus
      argues that his removal was a product of the “seeds planted” by the Store
      Director. RPFR File, Tab 1 at 29-30. This appears to be a cat’s paw theory of the
      case—a theory under which the retaliatory motive of the Store Director
      influenced the appellant’s removal even though the Store Director did not
      personally implement the removal.        See Aquino v. Department of Homeland
      Security, 121 M.S.P.R. 35, ¶ 19 (2014).
¶23         We find, however, that there is an insufficient connection between the Store
      Director’s actions and the barment to impute a retaliatory motive to the removal.
      Specifically, we agree with the administrative judge that the Navy’s independent
      investigation of the matter is key.      RID at 7.     The U.S. Supreme Court has
      explained that a supervisor’s biased report of alleged misconduct will be a
      proximate cause “if the independent investigation takes it into account without
      determining    that   the   adverse   action   was,   apart   from    the   supervisor’s
                                                                                          12

      recommendation, entirely justified.” Staub v. Proctor Hospital, 131 S. Ct. 1186,
      1193 (2011). In this case, it is likely that the Navy would never have conducted
      its investigation in the first place if it were not for the Store Detector’s inaccurate
      report.   However, there is no evidence that the Navy relied on the report itself in
      making its barment decision. The record shows instead that the Military Police
      gathered evidence independently, including the appellant’s fixed blade knife and
      his coworker’s statement that the appellant intended to “knock some heads off.”
      RAF, Tab 11 at 97-114.       Notably, the coworker specifically told the Military
      Police that the appellant did not say he had a weapon. Id. at 103. The statements
      of probable cause made no mention of the Store Director’s report. RAF, Tab 18
      at 35, 37. Nor did they make any mention of the erroneous information contained
      in that report, i.e., the appellant allegedly threatening to use a firearm. Id. As for
      the Store Director telling the base commander that agency employees feared the
      appellant, we find that the Store Director offered this information only when the
      base commander specifically requested it.       HT at 119 (testimony of the Store
      Director). There is no evidence that this answer was untruthful or that it would
      have been any different had the Store Director not been the subject of EEO
      complaints filed by the appellant. For these reasons, we find that any retaliatory
      actions on the part of the Store Director were not a proximate cause of the
      barment or the subsequent removal.

      We lack the authority to review the appellant’s claim that he was denied due
      process as to the barment order.
¶24         The appellant argues that the agency denied him due process because he had
      no opportunity to respond to the charges that led to his AWOL, and the notice and
      opportunity to respond to the proposed removal were just empty formalities.
      RPFR File, Tab 1 at 17-24.
¶25         To the extent that the appellant is arguing that he was denied due process
      concerning the barment itself, for the reasons discussed above, the Board lacks
      the authority to review the barment order. Supra, ¶ 13. Due process with respect
                                                                                        13

      to the agency’s removal action does not require that the appellant have an
      opportunity to contest the barment order. See Buelna v. Department of Homeland
      Security, 121 M.S.P.R. 262, ¶¶ 23-24 (2014).
¶26         The Board has recently issued a line of cases explaining an employee’s due
      process rights in the analogous context of security clearance and sensitive
      position eligibility cases. Ryan v. Department of Homeland Security, 2014 MSPB
      64, ¶¶ 7-11; Flores, 121 M.S.P.R. 287, ¶ 12; Buelna, 121 M.S.P.R. 262, ¶¶ 27-28.
      Specifically, to the extent that there may exist viable alternatives to the proposed
      removal, i.e., alternatives that were not prohibited, impracticable, or outside
      management’s purview, an employee has the right to invoke the discretion of a
      deciding official with the authority to select such alternatives.            Buelna,
      121 M.S.P.R. 262, ¶¶ 27-28. Because the Board announced this standard after the
      administrative judge issued his initial decision, the parties did not have a full and
      fair opportunity to develop the record in this regard, and we find that the current
      record is insufficient for the Board to make a determination at this time as to
      whether that standard has been met. We therefore remand this appeal for further
      adjudication on the due process issue.
                                                                                     14

                                            ORDER
¶27      For the reasons discussed above, we REMAND this case to the regional office
      for further adjudication in accordance with this Remand Order.                The
      administrative judge shall afford the parties an additional opportunity to address
      the due process issue in light of the Buelna line of cases.




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