                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     EDWARD L. GILLIAM,                              DOCKET NUMBER
                   Appellant,                        AT-0752-14-0039-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: February 4, 2015
       AFFAIRS,
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Edward L. Gilliam, Cape Coral, Florida, pro se.

           Karen L. Mulcahy, Esquire, Bay Pines, Florida, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     sustained 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review.   Therefore, we DENY the petition for review.      Except as
     expressly MODIFIED by this Final Order, we AFFIRM the initial decision. We
     MODIFY the initial decision to find that the appellant engaged in protected equal
     employment opportunity (EEO) activity of which the deciding official was aware
     at the time she decided to remove the appellant but FIND that this does not affect
     the administrative judge’s finding that the appellant failed to prove his
     affirmative defense of retaliation for EEO activity.
¶2        Effective October 27, 2012, the agency removed the appellant from his
     GS-6 Police Officer position at the agency’s Fort Myers Outpatient Clinic based
     on four charges of alleged misconduct. Initial Appeal File (IAF), Tab 5 at 20-22.
     The appellant appealed and contended that the removal constituted retaliation for
     prior EEO activity and discrimination based on his sex, religion, and national
     origin. IAF, Tab 1. The administrative judge convened the appellant’s requested
     hearing, but, after several hours of testimony, the appellant decided not to
     participate in the hearing any further. IAF, Tabs 32, 34; see Hearing Compact
     Disc (HCD), Track 4. The administrative judge deemed the appellant to have
     waived his right to a hearing and he issued an initial decision on the written
     record. The administrative judge sustained all charges and specifications, found
     nexus, found no retaliation or discrimination, and found the penalty of removal to
     be reasonable. Initial Decision (ID) at 3-21.
                                                                                           3

¶3         The appellant contends on review that the administrative judge improperly
     interfered with his presentation of his case and that the hearing was otherwise
     unfair. Petition for Review (PFR) File, Tab 1. 2 He has not, however, shown that
     the administrative judge abused his broad discretion to control the hearing under
     5 C.F.R. § 1201.41(b)(3). The administrative judge did not prevent the appellant
     from questioning witnesses; he merely did not allow the appellant to ask improper
     questions, which was entirely appropriate and completely within his discretion.
     See Grubb v. Department of the Interior, 96 M.S.P.R. 361, ¶ 27 (2004) (any limits
     that the administrative judge placed upon the appellant’s questioning of witnesses
     was designed to prevent her from introducing evidence that was not relevant to
     this case and was well within the administrative judge’s broad discretion). The
     administrative judge also advised the appellant not to discontinue the hearing,
     offered him multiple opportunities to continue the hearing, and explained to him
     that the decision to stop the hearing would be final and that the appellant could
     not change his mind once the decision was made. HCD, Track 4. Furthermore, to
     the extent that the appellant alleges on review that the administrative judge was
     biased, the fact that the administrative judge ruled against the appellant is not
     sufficient to show bias. See, e.g., Coufal v. Department of Justice, 98 M.S.P.R.
     31, ¶ 11 (2004).     Because the appellant’s implied claim of bias stems entirely
     from his disagreement with the administrative judge’s rulings, a finding of bias is
     not warranted. Id.
¶4         Turning to the merits of the appeal, the agency brought four charges against
     the appellant, three of which involve the appellant’s romantic relationship with

     2
       On July 9, 2014, the appellant filed a motion for leave to submit an additional
     pleading to “expose the habitual VA agency corruption” and to submit emails wh ich
     allegedly the “MSPB-Clerk of the Court was justifiab ly not aware of when granting [the
     agency] a requested extension.” PFR File, Tab 7. We DENY the appellant’s motion.
     The appellant’s arguments appear to relate to the appellant’s claim that the agency
     misrepresented the reason for the request for an extension of time to file a response to
     the petition for review, and are not material to the outcome of the case.
                                                                                        4

     coworker   L.M.      Specifically,   the   agency   charged   the   appellant   with:
     (1) Endangering the Safety of a Supervisor (two specifications of putting a
     chokehold on a police sergeant); (2) Conduct Unbecoming a Supervisor (one
     specification of having a loud and profane argument with L.M. in the workplace);
     (3) Failure to Follow Supervisory Instructions (two specifications of violating an
     order to avoid social contact with L.M. during duty hours, one additional
     specification of violating the order to avoid L.M. in an incident that impeded a
     coworker’s access to her office, and one specification of violating an order to stay
     out of room 106 without permission); and (4) Inappropriate Conduct in the
     Workplace (one specification of having a sexual encounter with L.M. at the clinic
     while on duty). IAF, Tab 5 at 69-73.
¶5        The appellant admits to engaging in the conduct under charge 1 but
     contends that it was mere horseplay and was meant to enhance morale.            IAF,
     Tab 5 at 43. The administrative judge found, however, that the charge did not
     require proof of intent, and he credited testimony from the agency’s witnesses
     that the incidents were serious.       ID at 3-4.    In particular, he noted that
     Sergeant B.S., the recipient of the chokehold, nearly lost consciousness during the
     second incident. ID at 4. While the appellant disagrees with the administrative
     judge’s fact findings and credibility determinations, the Board has limited
     discretion to disturb credibility determinations made after hearing live testimony.
     Cf. Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (the
     Board must give deference to an administrative judge’s credibility determinations
     when they are based, explicitly or implicitly, on the observation of the demeanor
     of witnesses testifying at a hearing; the Board may overturn such determinations
     only when it has “sufficiently sound” reasons for doing so); Little v. Department
     of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009) (credibility determinations made
     after hearing live testimony must be deemed to be at least implicitly based on
     witness demeanor). The appellant has not offered sufficiently sound reasons to
                                                                                        5

     overturn the administrative judge’s credibility findings.     See Haebe, 288 F.3d
     at 1302.
¶6         Under the second charge, the agency alleged that the appellant and L.M.
     had a loud and profane argument on duty that was overheard by others. IAF,
     Tab 5 at 70. The appellant admits that he and L.M. had what he described as a
     “lovers’ quarrel” behind closed doors, see id. at 44, and a witness testified that he
     overheard the argument from the front of the clinic and patients were present, see
     HCD, Track 1. The administrative judge correctly found that the agency proved
     charge 2. ID at 4-5.
¶7         The third charge is Failure to Follow Supervisory Instructions.         Under
     specifications a and b, the agency alleges that, on July 26, 2012, and April 26,
     2012, the appellant violated an April 19, 2012 instruction from Lieutenant P.Q. to
     stay away from L.M. IAF, Tab 5 at 70-71. The appellant admits that he met with
     L.M. during duty hours on those dates and the administrative judge found that
     P.Q. ordered him not to do so on April 19. The administrative judge correctly
     found that the agency proved these specifications. ID at 8-9.
¶8         At issue under specifications c and d is a meetin g on March 14, 2012,
     during which P.Q. instructed the appellant to curb his activity with L.M. while on
     duty and not to enter room 106 without authorization. IAF, Tab 5 at 71, 110.
     The appellant contended that P.Q. gave him no such instructions. IAF, Tab 27
     at 8-17.   He contended below that his union representative, A.B., was present
     during this meeting and was able to verify that P.Q. did not issue the instructions.
     Id. at 3-17. The administrative judge approved A.B. to testify as a witness at the
     hearing, see IAF, Tab 31 at 3, but the appellant discontinued the hearing before
     A.B.’s testimony and there is no documentary evidence in the record below to
     support the appellant’s claim that A.B. witnessed the meeting.
¶9        For the first time on review, the appellant submits an unsworn statement
     purportedly from A.B. that states that he does not recall hearing P.Q. order the
     appellant to stay away from L.M.        PFR File, Tab 1 at 19.      Under 5 C.F.R.
                                                                                        6

      § 1201.115, the Board will not consider evidence submitted for the first time with
      the petition for review absent a showing that it was unavailable before the record
      was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,
      3 M.S.P.R. 211, 214 (1980). The appellant asserts that this evidence is new and
      material because, despite his due diligence, he was not aware it would be needed
      until after the initial decision was issued. PFR File, Tab 1 at 5. He further claims
      that the administrative judge is punishing him for discontinuing the hearing. Id.
      at 5-6. We disagree. The administrative judge held the record open for several
      days after the hearing to afford the parties the opportunity to submit additional
      evidence and argument.     IAF, Tabs 32-33.    The appellant submitted a closing
      argument but proffered no evidence. IAF, Tab 34. Under the circumstances, the
      administrative judge afforded the appellant fair warning of the consequences of
      discontinuing the hearing and gave him an opportunity to supplement the record,
      but the appellant simply failed to exercise due diligence in submitting evidence
      that was sufficient to support his unsworn assertions. Cf. Scott v. Department of
      Justice, 69 M.S.P.R. 211, 228-29 (1995) (a witness’s specific affidavit had
      greater probative value than the appellant’s general unsworn statement), aff’d,
      99 F.3d 1160 (Fed. Cir. 1996) (Table); Social Security Administration v.
      Whittlesey, 59 M.S.P.R. 684, 692 (1993) (a sworn statement has greater weight
      than one that is not sworn), aff’d, 39 F.3d 1197 (Fed. Cir. 1994) (Table). Thus,
      the appellant has failed to show that he exercised due diligence, and we have not
      considered the new statement from A.B.        The administrative judge therefore
      correctly found that the appellant failed to rebut evidence showing that P.Q. in
      fact issued the April 19 order. ID at 8.
¶10        Under specification c of charge 3, the agency alleges that the appellant
      violated P.Q.’s March 14 instructions to stay away from L.M. while on duty when
      a witness caught the appellant and L.M. kissing in the alcove of the witness’s
      office hallway on March 27.       IAF, Tab 5 at 71.     The appellant admits this
      specification and asserts that it is a normal activity between two people in a
                                                                                      7

      relationship. Id. at 45-46. That may be the case, but the appellant is not charged
      with kissing L.M. but with violating an instruction from his supervisor to stay
      away from her while on duty. The appellant may have thought the instruction
      was intrusive, but he was not free to disregard it.     The administrative judge
      correctly found that the agency proved specification c. ID at 9-10.
¶11        Under specification d, the agency asserted that the appellant violated P.Q.’s
      March 14 instructions by entering room 106 without authorization on March 22.
      IAF, Tab 5 at 71. The appellant acknowledges that he entered room 106 without
      authorization but alleges that he did so because he had to retrieve the radio
      charger he left there. Id. at 46. He has not explained, however, why he could not
      have simply asked for authorization to retrieve the radio charger, asked someone
      with authorization to retrieve it for him, or chosen to put his radio charger in a
      different room. The administrative judge correctly found that it was undisputed
      that the appellant entered room 106 without authorization. ID at 10.
¶12        Under the fourth charge, Inappropriate Conduct in the Workplace, the
      agency alleged that, on November 5, 2011, the appellant had “inappropriate
      relations” with L.M. in the workplace while on duty. IAF, Tab 5 at 71-72. The
      evidence for this charge is a series o f text messages between the appellant and
      L.M. on the day in question. IAF, Tab 28 at 26-60. The initial decision contains
      an exhaustive and correct summary and analysis of the text messages. It is clear
      that the administrative judge gave careful consideration to the alternative
      meanings that the appellant attributed to the text messages, but he found that the
      explanations proffered by the appellant created some discrepancies that could not
      be reconciled. ID at 11-15. On review, the appellant he has not identified any
      evidence of record casting doubt on the administrative judge’s analysis, and we
      find that the administrative judge correctly found that the agency proved the
      fourth charge.
¶13        We also find that the administrative judge correctly found that the agency
      proved nexus and that the penalty of removal was within the tolerable bounds of
                                                                                         8

      reasonableness. ID at 15-17. Where, as here, all of the agency’s charges have
      been sustained, the Board will review an agency-imposed penalty only to
      determine if the agency considered all of the relevant factors and exercised
      management discretion within tolerable limits of reasonableness. See Davis v.
      U.S. Postal Service, 120 M.S.P.R. 457, ¶ 6 (2013). In determining whether the
      selected penalty is reasonable, the Board gives due deference to the agency’s
      discretion in exercising its managerial function of maintaining employee
      discipline and efficiency. Id. The Board recognizes that its function is not to
      displace management’s responsibility or to decide what penalty it would impose
      but to assure that management judgment has been properly exercised and that the
      penalty selected by the agency does not exceed the maximum limits of
      reasonableness. Id. Thus, the Board will modify a penalty only when it finds that
      the agency failed to weigh the relevant factors or that the penalty the agency
      imposed clearly exceeded the bounds of reasonableness.        Id.   However, if the
      deciding official failed to appropriately consider the relevant factors, the Board
      need not defer to the agency’s penalty determination. Id.
¶14        The record reveals that the deciding official properly considered the
      relevant mitigating factors in this case, particularly that the appellant had worked
      for the federal government since 1998, he had no prior disciplinary record, a good
      work record, and his most recent performance rating was Outstanding.            IAF,
      Tab 5 at 23.   However, his position required significant contact with patients,
      visitors, and employees on a daily basis. Id. He was a police officer and, as a
      result, is held to a higher standard of conduct than other employees. Id.; see, e.g.,
      Reid v. Department of the Navy, 118 M.S.P.R. 396, ¶ 26 (2012).
¶15        Moreover, his misconduct affected his supervisor’s confidence in the
      appellant’s ability to perform his duties because the appellant repeatedly
      disregarded supervisory instructions by meeting with L.M. at work, and he
      allowed his personal business to intrude upon the workplace. IAF, Tab 5 at 24.
      He endangered the safety of his supervisor twice, without provocation, in
                                                                                           9

      incidents that could have resulted in physical harm, and his misconduct was quite
      serious. Id. at 23. The penalty of removal for a first offense of endangering the
      safety of an employee or patient is consistent with the agency’s table of penalties
      and with the penalty imposed on other employees who endangered the safety of
      employees or patients. Id.at 24. We find that the administrative judge correctly
      determined that the deciding official properly considered the aggravating and
      mitigating factors most applicable to the case and exercised her management
      judgment within the acceptable bounds of reasonableness. ID at 16-17.
¶16        On review, the appellant argues that the deciding official’s assessment and
      the administrative judge’s finding that he refuses to accept responsibility for his
      actions or acknowledge their seriousness amounts to punishing him for defending
      himself. PFR File, Tab 1 at 11. The Board has held, however, that an appellant’s
      rationalizations for his behavior and lack of remorse for his misconduct reflect a
      lack of rehabilitative potential and may properly be considered as an aggravating
      factor. Neuman v. U.S. Postal Service, 108 M.S.P.R. 200, ¶ 26 (2008).
¶17        Although the appellant contended that the agency’s action constituted
      discrimination based on his sex, national origin, and religious discrimination, the
      administrative judge correctly found that the appellant introduced no evidence in
      support of any of these defenses and they were, therefore, not proven. ID at 19.
      Similarly, to the extent that the appellant raised a disparate penalty claim on the
      basis that L.M. received only a 3-day suspension for her part in charge 4, L.M. is
      not similarly-situated because she is not a police officer and did not engage in
      additional misconduct as the appellant did. 3 Id.; see IAF, Tab 26 at 22; see also
      McNab v. Department of the Army, 121 M.S.P.R. 661, ¶ 11 (2014) (to prove
      disparate penalty, the appellant must first show that there is enough similarity

      3
         To the extent that the appellant’s claim of sex discrimination also rests on the
      disparity between his removal and L.M.’s 3-day suspension, his claim fails for the same
      reason. See Spahn v. Department of Justice, 93 M.S.P.R. 195, ¶ 14 (2003) (in a Title
      VII disparate treatment claim, the sim ilarity of the comparator’s conduct is the
      controlling factor).
                                                                                           10

      between both the nature of the misconduct and other factors to lead a reasonable
      person to conclude that the agency treated similarly-situated employees
      differently).
¶18         The administrative judge found that the appellant failed to prove that the
      removal action constituted retaliation for prior EEO activity because he did not
      show that he engaged in any EEO activity prior to his removal. ID at 20. The
      appellant correctly asserts that the administrative judge is mistaken.       See PFR
      File, Tab 1 at 13-14. In fact, the appellant filed an informal EEO complaint on
      June 15, 2012, concerning the agency’s removal of his law enforcement
      credentials. IAF, Tab 1 at 98. Further, the deciding official stated during the
      investigation into the EEO complaint regarding the appellant’s removal that she
      was aware that the appellant had prior EEO activity at the time of his removal
      because the appellant told her as much during his oral reply to the notice of
      proposed removal. IAF, Tab 26 at 74. Given that the deciding official arrived at
      the clinic a month before she issued the notice of removal, id., and the appellant
      introduced no evidence that her decision was motivated by retaliation for
      engaging in EEO activity, the administrative judge correctly found that the
      appellant proffered no evidence of a causal connection between his EEO activity
      and the removal. ID at 20-21. Therefore, the administrative judge’s mistake does
      not affect the outcome of this case. See Panter v. Department of the Air Force,
      22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a
      party’s substantive rights provides no basis for reversal of an initial decision).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request further review of this final decision.
                                                                                   11

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
                                                                                 12

file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.      See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




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