UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2016 MSPB 12

Docket No. SF-0752-15-0456-I-1 

Cedric D. Clay,

Appellant,

v.

Department of the Army,

Agency.

March 2, 2016

Cedric D. Clay, Lacey, Washington, pro se.

Pamela J. Campbell and Stephen D. Funderburk, Joint Base 

Lewis-McChord, Washington, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

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

affirmed his removal. For the reasons discussed below, we GRANT the 

appellant’s petition for review, AFFIRM the administrative judge’s findings 

regarding the charges, VACATE the administrative judge’s findings concerning 

nexus and the penalty, and REMAND the case to the regional office for further 

adjudication in accordance with this Opinion and Order. 
2

BACKGROUND

¶2 The agency removed the appellant on three charges: use of offensive 

language in the workplace; inappropriate contact with a coworker; and failure to 

follow instructions. Initial Appeal File (IAF), Tab 8, Subtabs 4e, 4h. The 

appellant filed a timely appeal in which he argued that the agency discriminated 

against him on the basis of his race and retaliated against him for filing a Board 

appeal in 2012. 1

 IAF, Tab 1. After holding a hearing, the administrative judge

affirmed the agency’s action, finding that it proved its charges and established the 

required nexus between the appellant’s misconduct and the efficiency of the 

service. IAF, Tab 25, Initial Decision (ID) at 3-12, 18. The administrative judge

further found that the deciding official properly weighed the relevant Douglas

factors and conscientiously considered the pertinent mitigating factors, such that, 

under the circumstances presented, the penalty of removal was within the bounds 

of reasonableness. ID at 18-21. She also found that the appellant failed to 

establish his affirmative defenses of race discrimination and retaliation for 

engaging in protected activity. ID at 12-16. 

¶3 In his petition for review, the appellant cites a purported settlement offer as 

evidence that the agency wrongfully removed him. 2

 Petition for Review (PFR) 

File, Tab 1 at 1. He asserts that his supervisor admitted to using offensive 

language as well, argues that removing him for such behavior is therefore harsh, 

and asks the Board to reconsider the penalty. Id. at 1-2. The appellant claims 

that his alleged inappropriate physical contact with a coworker was instead an 

honest accident, apologizes for bumping into the individual involved, and again 

 

1 In that appeal, the Board reversed the agency’s prior removal action and reinstated the 

appellant with back pay. Clay v. Department of the Army, MSPB Docket No. SF-0752-

12-0406-I-1, Initial Decision (July 24, 2012).

2 It is well settled that settlement offers are inadmissible on the merits of a case and are 

entitled to no weight in determining whether a removal is appropriate. See, e.g., 

Cocchiara v. Department of Transportation, 18 M.S.P.R. 281, 283 (1983). 
3

asks the Board to reconsider the penalty. Id. at 2-3. He also cites a coworker’s 

statement of “that’s why we don’t want you here” as showing a conflict with that 

individual, and resubmits a list of 14 “highlited [sic] incidents” from his appeal in 

an apparent reiteration of his retaliation claim. Id. at 3-4; see IAF, Tab 22. The 

agency responds in opposition to the appellant’s petition for review. PFR File,

Tab 3. 

ANALYSIS

The agency met its burden of proving the charges but remand is required for 

further adjudication of the appellant’s affirmative defense of reprisal. 

¶4 We agree with the administrative judge that the agency proved its charges 

by preponderant evidence. ID at 3-12. The administrative judge based her 

findings significantly on hearing testimony, see id., and 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, e.g., Haebe v. Department of 

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). 

¶5 The administrative judge found that the agency proved the first charge, 

which comprised three specifications of using offensive language in the 

workplace, finding the testimony before her was consistent with and 

corroborative of the documentary evidence offered in support of the agency’s 

charge and also was more credible than the appellant’s denial that he engaged in 

the conduct at issue. ID at 3-7. The administrative judge acknowledged the 

statement of the appellant’s coworker regarding the appellant’s presence in the 

workplace that the appellant cites on review, PFR File, Tab 1 at 2, explicitly 

noting the coworker’s admission that he “did not like working with the 

appellant.” However, the administrative judge found that the appellant’s own 

statements and hearing testimony essentially corroborated the coworker’s 

testimony regarding the appellant’s use of offensive language in the workplace. 
4

ID at 4-5. On review, the appellant offers no sufficiently sound reason to revisit 

the administrative judge’s well-founded conclusions. Haebe, 288 F.3d at 1301. 

¶6 As for the appellant’s contention that his supervisor used offensive 

language, the record does not reflect that the appellant argued in his appeal below 

that his supervisor did so. The Board generally will not consider an argument 

raised for the first time in a petition for review absent a showing that it is based 

on new and material evidence not previously available despite the party’s due 

diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). 

Moreover, regarding this charge, the record reflects that the administrative judge 

considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions on the issue of credibility. ID at 3-5; see, e.g., 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 where she considered the evidence as a whole, 

drew appropriate inferences, and made reasoned conclusions); Broughton v. 

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same). 

¶7 Likewise, the administrative judge found that the agency proved the second 

charge, which comprised three specifications of inappropriate physical contact 

with a coworker, on the strength and consistency of multiple witnesses’ sworn 

statements and testimony, specifically determining that the reticence shown by

one of the witnesses concerned her apprehension about the negative consequences 

of her testimony on the appellant’s employment, but that this reticence did not 

reflect any doubt or uncertainty about the facts to which she testified. ID at 7-10. 

Concerning the appellant’s argument that his inappropriate physical contact with 

a coworker was instead an honest accident, the appellant again challenges the 

administrative judge’s findings, PFR File, Tab 1 at 2-3, but he provides no basis

to disturb the administrative judge’s well-reasoned determination that the agency 

established this charge by preponderant evidence through both documentary 

evidence and live testimony, ID at 7-10; Crosby, 74 M.S.P.R. at 105-06; 

Broughton, 33 M.S.P.R. at 359. 
5

¶8 Based on the testimony before her, the administrative judge also found that 

the agency proved the third charge, which comprised two specifications of failure 

to follow instructions, rejecting the appellant’s contentions that he just had been 

in the bathroom when he could not be found during his assigned duty hours, and 

finding that, even though he was instructed not to leave confidential patient 

records on the copier, he did so anyway. ID at 10-12. Again, we find that the 

appellant provides nothing on review that would cause us to revisit the 

administrative judge’s findings. 

¶9 Although the appellant does not specifically address his affirmative 

defenses in his petition for review, the list he provides at the end of his petition 

touches on them, emphasizing, among other things, the fact that he filed an equal 

employment opportunity complaint as well as a prior removal action reversed by 

the Board. PFR File, Tab 1 at 3. As noted above, the administrative judge

rejected the appellant’s affirmative defense of race discrimination. ID at 12-15. 

However, following the issuance of the initial decision in this appeal, the Board 

issued Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), in which we 

reaffirmed that, instead of the burden-shifting analysis employed by the 

administrative judge to adjudicate the appellant’s affirmative defenses in this 

matter, the Board would adhere to the test set forth in Mt. Healthy City School 

District Board of Education v. Doyle, 429 U.S. 274, 287 (1977), in cases 

involving discrimination or retaliation allegations under 42 U.S.C. § 2000e-16. 

Savage, 122 M.S.P.R. 612, ¶ 50. Specifically, where an appellant asserts such an 

affirmative defense, the Board first will inquire whether the appellant has shown 

by preponderant evidence that the prohibited consideration was a motivating 

factor in the contested personnel action. Id., ¶ 51. If the appellant meets that 

burden, then we would inquire whether the agency has shown by preponderant 

evidence that it still would have taken the contested action in the absence of the 

discriminatory or retaliatory motive. Id. Given the administrative judge’s 

finding, after a careful review of the record before her, that the appellant 
6

provided no evidence that the agency took any of the actions cited in this appeal 

based on his race,

3 ID at 15, we find that the result would be the same under 

either the original or the post-Savage analysis. See Savage, 122 M.S.P.R. 612, 

¶¶ 45-51; Browder v. Department of the Navy, 81 M.S.P.R. 71, ¶¶ 7-8 (1999), 

aff’d, 250 F.3d 763 (Fed. Cir. 2000) (Table). 

¶10 However, as to the appellant’s claim of retaliation for filing his prior Board 

appeal, we note that he included a whistleblower reprisal claim in that prior 

appeal. See Clay v. Department of the Army, MSPB Docket No. SF-0752-12-

0406-I-1, Initial Decision at 10-12 (July 24, 2012). His reprisal claim therefore 

falls under 5 U.S.C. § 2302(b)(9)(A)(i), which makes it a prohibited personnel 

practice “to take or fail to take, or threaten to take or fail to take, any personnel 

action against any employee or applicant for employment because of the exercise 

of any appeal, complaint, or grievance right granted by any law, rule, or 

regulation, with regard to remedying a violation” of 5 U.S.C. § 2302(b)(8). 

Under such circumstances, his retaliation claim in this appeal should be analyzed 

under 5 U.S.C. § 1221(e), rather than under the general reprisal standard utilized 

by the administrative judge here. ID at 15-17; see Alarid v. Department of the 

Army, 122 M.S.P.R. 600, ¶¶ 12-15 (2015) (applying the 5 U.S.C. § 1221(e) 

standard to an affirmative defense of reprisal under 5 U.S.C. § 2302(b)(9)(B)). 

¶11 Upon remand, the administrative judge should apprise the appellant of his 

burden of proof, afford the parties an opportunity to conduct discovery on the 

issue, and hold a supplemental hearing if requested. She first must determine 

whether the appellant established that he engaged in such protected activity, then 

consider whether that activity was a contributing factor in the removal at issue in 

this appeal. Alarid, 122 M.S.P.R. 600, ¶ 13. If the appellant establishes those 

factors by preponderant evidence, then the administrative judge must consider 

 

3 We see no reason to disturb this finding on review. 
7

whether the agency met its burden by clear and convincing evidence that it would 

have taken the same action in the absence of the appellant’s protected activity. 

Id., ¶ 14. In the new initial decision, if the appellant fails to prove his affirmative 

defense of reprisal, then the administrative judge may adopt her original findings 

regarding nexus and the penalty. 

ORDER

¶12 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Opinion and Order. 

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.