                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LC BLACK,                                       DOCKET NUMBER
                         Appellant,                  CH-0752-15-0429-I-2

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 20, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           LC Black, Kirkwood, Missouri, pro se.

           G.M. Jeff Keys, St. Louis, Missouri, 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 agency’s action removing him from his position.           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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the administrative 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. 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, 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         Effective September 20, 2014, the agency removed the appellant from his
     WG-6 Motor Vehicle Operator position based on charges of unlawful use of a
     weapon and conduct unbecoming a Federal employee. Black v. Department of
     Veterans Affairs, MSPB Docket No. CH-0752-15-0429-I-1, Initial Appeal File
     (IAF), Tab 8 at 3, 10-15. After a hearing, the administrative judge sustained both
     charges, found that the appellant failed to prove his affirmative defenses of
     harmful error and retaliation for prior equal employment opportunity (EEO)
     activity, and determined that the penalty of removal was within the tolerable
     bounds   of   reasonableness.     Black   v.   Department     of   Veterans   Affairs,
     MSPB Docket No. CH-0752-15-0429-I-2, Refiled Appeal File (RAF), Tab 23,
     Initial Decision (ID) at 6-23.
¶3         The appellant asserts on review that, because the criminal charges brought
     against him for the same underlying acts were dismissed, he cannot be removed
     for the same conduct. Petition for Review (PFR) File, Tab 1 at 3. An appellant’s
     acquittal on criminal charges does not preclude an agency from taking an adverse
     action based on the same misconduct that led to the criminal charges.
     Rodriguez-Ortiz v. Department of the Army, 46 M.S.P.R. 546, 548 (1991).
     Therefore, the appellant’s argument is without legal basis.
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¶4         The appellant also challenges generally the administrative judge’s findings
     that the agency proved both charges. PFR File, Tab 1 at 5. The administrative
     judge based her findings primarily on her assessment of the witnesses’ relative
     credibility, including the appellant’s demeanor during his hearing testimony.
     ID at 7-10, 12-13. 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. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) .
     The appellant has failed to proffer sufficiently sound reasons for disturbing the
     administrative judge’s credibility determinations and otherwise presents no
     reason to overturn the charges against him.
¶5         The administrative judge found that the appellant failed to prove his
     affirmative defense of EEO retaliation because he did not show that the deciding
     official knew about the appellant’s EEO activity and because his proffered
     comparator was a volunteer and not an agency employee.          ID at 14-19.    The
     appellant makes a bald assertion on review that the administrative judge’s finding
     is incorrect, PFR File, Tab 1 at 7, but he identifies no mistake of fact or law, and
     we discern none. The appellant also alleges that the agency did not treat him
     fairly when he was injured by a coworker and assaulted by a volunteer several
     months prior to the misconduct at issue in this case. Id. The relevance of these
     allegations is not apparent from the record and, in any event, provide no basis for
     disturbing the initial decision.
¶6         The appellant reiterates on review his argument below that the agency
     committed harmful error by conducting an improper investigation and failing to
     afford him sufficient time to review the evidence against him.           PFR File,
     Tab 1 at 6.   He also contends that the agency violated a series of contract
     provisions concerning disciplinary and adverse actions. Id.; RAF, Tab 19 at 6-9.
     The appellant, though, does not describe how the agency violated these provisions
                                                                                       4

     or explain how any violation affected the outcome of his case.              As the
     administrative judge correctly found, harmful error cannot be presumed; an
     agency error is harmful only when the record shows that the procedural error was
     likely to have caused the agency to reach a conclusion different from the one it
     would have reached in the absence or cure of the error. Stephen v. Department of
     the Air Force, 47 M.S.P.R. 672, 681, 685 (1991); ID at 20. While the appellant
     appears to challenge the administrative judge’s finding that he failed to prove
     harmful error, he has identified no mistake of fact or law that would warrant
     setting aside the initial decision.    Moreover, while the record shows that the
     appellant was a member of a bargaining unit, IAF, Tab 8 at 3, there is no
     evidence as to which bargaining unit this contract covers and thus no evidence
     whether the contract applies to the appellant.
¶7         The appellant also makes a vague reference to what we presume is our
     decision in Pickett v. Department of Agriculture, 116 M.S.P.R. 439 (2011), a case
     involving ex parte communications within the agency that we found violated the
     appellant’s due process rights, PFR File, Tab 1 at 6.          Aside from simply
     producing the case name, the appellant provides no argument explaining why he
     believes the case is relevant to his appeal, and we otherwise see no reason why it
     warrants reversal of the initial decision.
¶8         The appellant further contends that the administrative judge failed to
     consider the “most important” Douglas 2 factors, namely, “provocation, extent of
     injuries, and whether actions were defensive or offensive,” when she analyzed the
     appropriateness of the penalty. PFR File, Tab 1 at 6-7. On the contrary, the
     administrative judge explicitly considered the appellant’s claim that he was
     provoked and found it without merit. ID at 23. Moreover, the administrative
     judge found that the appellant was the aggressor in the incident that led to his

     2
       In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
     articulated a nonexhaustive list of factors relevant to the penalty determination in
     adverse actions.
                                                                                        5

      removal, which implicitly means that she considered his actions to be offensive
      rather than defensive.     Id.   The appellant’s penalty argument amounts to a
      challenge to the administrative judge’s findings of fact. Because those findings
      are based on witness credibility and the appellant has not provided a sufficiently
      sound reason to set them aside, we see no basis to disturb them. Haebe, 288 F.3d
      at 1301.
¶9         The appellant challenges the administrative judge’s decision not to approve
      one of his witnesses to testify, purportedly on the basis that the appellant’s
      request was untimely. PFR File, Tab 1 at 4. The administrative judge rejected
      the witness because the appellant failed to make a proffer concerning the
      witness’s expected testimony and relevance, with the untimeliness of the request
      a secondary consideration. RAF, Tab 21. The appellant has not explained what
      the testimony might have been and how it would have made a difference in his
      case. Under the circumstances, the administrative judge’s ruling was well within
      her wide discretion to control the proceedings. Miller v. Department of Defense,
      85 M.S.P.R. 310, ¶ 8 (2000) (finding that an administrative judge has wide
      discretion to control the proceedings, including authority to exclude testimony
      she believes would be irrelevant or immaterial).
¶10        The appellant also argues that the agency’s decision not to call all of its
      approved witnesses deprived him of the opportunity to cross examine those
      witnesses. PFR File, Tab 1 at 4. The appellant has not explained why he did not
      include these witnesses on his final witness list so they could be approved as joint
      witnesses. RAF, Tab 15 at 7. Moreover, when the administrative judge approved
      the witnesses as agency witnesses only, the appellant had the opportunity to
      object and request that the witnesses be approved as joint witnesses, but he did
      not do so. We thus discern no such error or abuse of discretion on the part of the
      administrative judge.
¶11        The appellant has requested leave to file an additional pleading on review.
      PFR File, Tab 4.        The appellant wishes to submit a settlement agreement
                                                                                       6

      concerning an alleged hostile working environment. He contends that, because
      the agency breached this agreement, he filed a formal EEO complaint, which led
      the agency to retaliate against him by removing him. The appellant’s proffer does
      not overcome the administrative judge’s finding that the appellant failed to show
      that the deciding official was aware of the appellant’s EEO activity. Moreover,
      because he claims that the agency’s breach caused his formal EEO complaint, the
      document he now wishes to submit clearly was available to him well before the
      close of the record below and he has not explained why, despite his due diligence,
      he could not have submitted it in a timely manner.          Avansino v. U.S. Postal
      Service, 3 M.S.P.R. 211, 214 (1980).
¶12        Finally, to the extent the appellant is attempting to make a claim of
      administrative judge bias, he has not articulated any such claim with enough
      particularity to overcome the presumption of honesty and integrity that
      accompanies    administrative    adjudicators.      Oliver     v.   Department   of
      Transportation, 1 M.S.P.R. 382, 386 (1980).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.
      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 U.S. 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:
                                                                                 7

                           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 U.S. 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 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
                                                                            8

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




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