                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     TODD BURKE,                                     DOCKET NUMBER
                         Appellant,                  CH-0752-14-0124-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: May 11, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Bobby R. Devadoss, Esquire, Dallas, Texas, for the appellant.

           Nayoka L. Irving, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     affirmed the appellant’s removal. Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; the
     initial decision is based on an erroneous interpretation of statute or regulation or
     the erroneous application of the law to the facts of the case; the judge’s rulings

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.              5 C.F.R.
     § 1201.113(b).
¶2        The agency removed the appellant from the GS-14 position of Supervisory
     Information Technology Specialist based on the charge of providing sensitive
     contract documents to the employee of a subcontractor, R.D., creating the
     appearance of a conflict of interest. Initial Appeal File (IAF), Tab 4, Subtabs B,
     F, I. The appellant appealed the agency’s action, denying the charged misconduct
     and requesting a hearing. IAF, Tab 1. However, during proceedings before the
     administrative judge, the appellant requested a decision on the written record.
     IAF, Tab 7.
¶3        The administrative judge found that R.D.’s statement that the appellant had
     given him sensitive documents related to an upcoming information technology
     contract valued at more than $400 million was more credible than the appellant’s
     affidavit denying having provided the documents to R.D. IAF, Tab 15, Initial
     Decision (ID).    The administrative judge found that such a prior release of
     sensitive documents could give the subcontractor an unfair competitive advantage
     over its rivals in submitting a proposal for the contract, creating the appearance of
     a conflict of interest.   ID at 6.   Thus, the administrative judge sustained the
     charge.   He also found that the removal penalty did not exceed the bounds of
     reasonableness, and he affirmed the agency’s action. ID at 7-10.
                                                                                           3

¶4         In his petition for review, the appellant contends that the administrative
     judge erred in finding the subcontractor’s statement more credible than the
     appellant’s denial of the misconduct. Petition for Review (PFR) File, Tab 1. 2
¶5         When an administrative judge’s findings regarding credibility are based on
     the demeanor of witnesses, those findings are entitled to deference. Jackson v.
     Veterans Administration, 768 F.2d 1325, 1331 (Fed. Cir. 1985).            In this case,
     however, no hearing was held and the administrative judge’s findings were based
     only on the written record. For this reason the Board is free to make its own
     credibility findings based on our review of the record.            See Schmittling v.
     Department of the Army, 81 M.S.P.R. 225, 230 (1999) (the Board may substitute
     its own credibility determinations for an administrative judge’s explicit or
     implicit credibility findings when the administrative judge’s findings are not
     based on the demeanor of witnesses), vacated on other grounds, 219 F.3d 1332
     (Fed. Cir. 2000). In this case, we find that the administrative judge’s analysis
     was both logical and reasonable under the circumstances, and that the appellant’s
     assertion of error is without merit.
¶6         According to the evidence of record, R.D. handwrote a statement about the
     appellant’s action that led to the charges. R.D. described an incident between
     him and the appellant that occurred when R.D. was visiting the appellant’s
     facility on February 6, 2013.       R.D. said that “[a]t the end of the day, [the
     appellant] called me into his office and gave me some documents related to the
     upcoming [contract] solicitation. . . . After I got back to my hotel, I called my
     boss . . . for advice. He instructed me not to read [the documents], and to wait for
     instructions. . . . My boss . . . instructed me to stop at the nearest Fed Ex place
     and told me where to send [the documents], which I did.” IAF, Tab 4, Subtab H,
     Exhibit 13.

     2
       For unexplained reasons, the docket number that the appellant placed on his petition
     for review is the docket number of another appellant’s case. It is clear from the
     arguments in the petition, however, that the petition relates to the appellant’s appeal.
                                                                                         4

¶7        Another employee of the subcontractor contacted the agency about the
     February 6, 2013 incident, and the agency conducted an investigation.             IAF,
     Tab 4, Subtab H. An agency investigator made a memorandum of the interview
     with R.D. that repeats much of what he set forth in his handwritten statement.
     Id., Exhibit 12. The investigator also made a memorandum of the interview with
     R.D.’s supervisor, who was referenced in the written statement. The supervisor
     corroborated R.D.’s statement that, when he realized generally the content of the
     package that the appellant had given him, he called for guidance. The supervisor
     also corroborated that he gave the guidance as R.D. stated and that he followed it.
     Id., Exhibit 14.   The summary of interviews with other of the subcontractor’s
     employees who were involved in returning the documents to the agency also
     corroborated that R.D. followed the direction about how to handle the documents
     once he realized from their titles that they were sensitive. Id., Exhibits 1-5.
¶8        In addition, the investigator made a memorandum of the interview with the
     appellant.    The appellant denied giving the sensitive documents to R.D. and
     speculated that R.D. took the documents from the appellant’s desk.                Id.,
     Exhibit 16.    The appellant’s denial is not corroborated, and it is partially
     contradicted by his clerical assistant. In the memorandum of interview with the
     appellant’s clerical assistant, he told investigators that if the appellant is not in
     his office, his door is locked. Id., Exhibit 17. The appellant’s clerical assistant’s
     statement thus suggests that R.D. would not have had access to the appellant’s
     desk to take the sensitive documents, as the appellant suggests.
¶9        The administrative judge properly found that R.D.’s account was more
     credible than the appellant’s.   As the administrative judge properly found, the
     record shows that the appellant allowed very limited access to his office, making
     it improbable that R.D. would have had access to the appellant’s office. ID at 5.
     Additionally, significant portions of R.D.’s account of the incident are
     corroborated by his supervisor.     ID at 5.    Further, R.D. and his supervisor’s
     statements are consistent and do not display any evidence of fabrication or
                                                                                        5

      collusion on their part.       ID at 5.        See Hillen v. Department of the
      Army, 35 M.S.P.R. 453, 458 (1987) (factors that an administrative judge must
      consider when resolving credibility issues).
¶10        In his petition, the appellant emphasizes R.D.’s statement that he did not
      have a friendly relationship with the appellant, raising the implication that R.D.’s
      accusations could have been purposely detrimental to the appellant. PFR File,
      Tab 1.    However, in his statement made during the course of the agency’s
      investigation, the appellant indicated that he did not care for R.D.’s management
      style. IAF, Tab 4, Subtab H, Exhibit 17. In that interview, the appellant called
      R.D. a “bottleneck” who increases the appellant’s costs to develop software. Id.
      The appellant also indicated that R.D. is evasive and that he does not trust R.D.
      Id. The appellant further indicated that he and R.D. had had “words” in the past.
      Id. The record shows then that R.D. and the appellant did not get along. To the
      extent that the differences between R.D. and the appellant go to the Hillen factor
      of bias, we find that the self-reported record of their differences does not weigh
      for or against either R.D. or the appellant being more or less credible.
¶11        The appellant also contends that the agency failed to show that he benefited
      from giving sensitive documents to R.D. PFR File, Tab 1. If an agency chooses
      to label an action, then it must prove the elements that make up the legal
      definition of that charge, if any. Walker v. Department of the Army, 102 M.S.P.R.
      474, ¶ 4 (2006). Here, as noted, the agency charged the appellant with providing
      sensitive contract documents to a subcontractor’s employee creating the
      appearance of a conflict of interest. IAF, Tab 4, Subtab F. To the extent that the
      agency labeled the charge, there is no evidence that proof of gain to the appellant
      was an element of the charge. In any event, the Board has held that even when an
      agency charges an employee with conflict of interest that includes financial gain,
      the reference to financial gain is a descriptive term that the agency need not prove
      to sustain its charge. See Acree v. Department of the Treasury, 80 M.S.P.R. 73,
      ¶ 15 (1998), aff’d, 215 F.3d 1347 (Fed. Cir. 1999) (Table).
                                                                                        6

¶12        Accordingly, we agree with the administrative judge’s decision to affirm the
      agency’s removal action.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States 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 United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
      Dec. 27, 2012). You may read this law as well as other sections of the United
      States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
      Additional information is available at the court's website, www.cafc.uscourts.gov.
      Of particular relevance is the court's "Guide for Pro Se 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
      United States Court of Appeals for the Federal Circuit, you may visit our website
      at   http://www.mspb.gov/probono for       information      regarding   pro    bono
                                                                                7

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