UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JACOB REVILLS,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-0714-18-0049-I-1

DATE: April 22, 2024

THIS ORDER IS NONPRECEDENTIAL1

Danielle B. Obiorah, Esquire, Jonesboro, Georgia, for the appellant.

Kamaria Morris, Columbia, South Carolina, for the agency. 

Karen Rodgers, Montgomery, Alabama, for the agency. 

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

affirmed his removal from Federal service pursuant to the Department of Veterans

Affairs Accountability and Whistleblower Protection Act of 2017 (VA

Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat 862, 869-73 (codified

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
as amended at 38 U.S.C. § 714). For the reasons discussed below, we GRANT

the appellant’s petition for review, VACATE the initial decision, and REMAND

the case to the Atlanta Regional Office for further adjudication in accordance

with this Remand Order. 

BACKGROUND

The appellant was employed as a GS-09 Medical Technologist at the

agency’s Atlanta Veterans Administration Medical Center in Decatur, Georgia.

Initial Appeal File (IAF), Tab 7 at 26, 42. On September 15, 2017, the agency

issued a notice proposing to remove the appellant pursuant to 38 U.S.C. § 714

based on two charges: (1) conduct unbecoming (3 specifications); and

(2) unauthorized absences (18 specifications). Id. at 42-48. The conduct

unbecoming charge alleged that the appellant requested leave under the Family

and Medical Leave Act of 1993 (FMLA) for July 11, 13, and 14, 2017, and then

worked at a private non-profit hospital during the time covered by his FMLA

leave. Id. at 42. The unauthorized absences charge alleged that, on 18 days

during the period from July 17 to August 11, 2017, the appellant was absent from

work for the first portion of his shift without his supervisor’s authorization and

that he was working at the other non-profit hospital during those absences. Id.

at 43-47. Following the appellant’s written response to the proposal, id.

at 149-56, the deciding official issued a decision sustaining the charges and

finding removal warranted, id. at 11-14. The appellant was removed effective

October 6, 2017. Id. at 26. 

The appellant filed a Board appeal challenging his removal, and he

requested a hearing. IAF, Tab 1. He raised affirmative defenses of retaliation for

his prior equal employment opportunity (EEO) activity and for assisting

coworkers with their EEO complaints, and disability discrimination. Id. at 4,

Tab 13 at 5, Tab 16 at 3-4.

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After a hearing, the administrative judge affirmed the removal, finding that

the agency proved its charges by substantial evidence and that the appellant failed

to prove his affirmative defenses. IAF, Tab 31, Initial Decision (ID) at 3-10. The

appellant has filed a petition for review of the initial decision, and the agency has

filed a response in opposition to the petition. Petition for Review (PFR) File,

Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge concluded that the agency met its burden of

proving both charges and all the supporting specifications. ID at 3-8. The

appellant does not appear to dispute that finding on review. PFR File, Tab 1.

Instead, he makes vague assertions that the initial decision was wrongly decided,

identifying the following reasons: “Procedural error; Prejudice; Legal error;

Basis; Missinteration [sic] of law and evidence; And other issues.” Id. at 5

(punctuation added, capitalization as in original). He further alleges that the

administrative judge issued the initial decision before the appellant “close[d] [his]

case.” Id. at 3. The appellant also states that he has documents or evidence that

was not included in the record that he would provide at a later date. Id. at 3-4.

Finally, he appears to allege that the administrative judge was biased, stating that

the hearing was “unfair and prejudice [sic].” PFR File, Tab 1 at 3. 

The appellant’s assertions are unsupported. Regarding his allegation that

his appeal was closed prematurely, the record reflects that the administrative

judge issued his decision following a 2-day hearing, in which the appellant was

represented by counsel, who examined witnesses and provided a closing

statement at the end of hearing. ID; IAF, Tab 29, Hearing Compact Disc (HCD);

see 5 C.F.R. § 1201.59(a) (stating that, when there is a hearing, the record will

ordinarily close at the conclusion of the hearing). Regarding his claim that the

administrative judge was “unfair and prejudice[d],” the appellant’s bare assertion

does not establish a deep-seated antagonism towards him that would make fair

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judgment impossible and does not overcome the presumption of honesty and

integrity accorded to administrative judges. See Bieber v. Department of the

Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002); Oliver v. Department of

Transportation, 1 M.S.P.R. 382, 386 (1980). 

With respect to his argument that he has documents that are important to

his appeal that he will provide at a later date, the appellant does not identify what

those documents are, nor has he submitted them on review, and so we are unable

to assess this claim. PFR File, Tab 1 at 3-4; see Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980) (noting that the Board will not grant

a petition for review based on new evidence absent a showing that it is of

sufficient weight to warrant an outcome different from that of the initial

decision); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980)

(observing that under 5 C.F.R. § 1201.115, the Board generally will not consider

evidence submitted for the first time on review absent a showing that it was

unavailable before the record was closed despite the party’s due diligence);

5 C.F.R. § 1201.115(d) (explaining that, to constitute new evidence on review,

the information contained in the documents that a party submits, and not just the

documents themselves, must have been unavailable when the record closed

below). Accordingly, the appellant’s petition for review falls far below the

standard set forth in 5 C.F.R. § 1201.115 for granting Board review, and his

petition would ordinarily be denied. 

We nevertheless remand the appeal for the administrative judge to provide the

parties with an opportunity to present evidence and argument regarding whether

the agency’s error in sustaining the removal based on substantial evidence harmed

the appellant.

Notwithstanding the above findings, remand of the appeal is required for a

different reason. After the initial decision in this case was issued, the U.S. Court

of Appeals for the Federal Circuit (Federal Circuit) issued its decision in

Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290 (Fed. Cir. 2021), in

which it determined that the agency erred by applying a substantial evidence

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burden of proof to its internal review of a disciplinary action taken under

38 U.S.C. § 714.2 The court in Rodriguez found that substantial evidence is the

standard of review to be applied by the Board, not the agency, and that an

agency’s deciding official must “determine[]” whether “the performance or

misconduct . . . warrants” the action at issue, applying a preponderance of the

evidence burden of proof. Id. at 1298-1301 (quoting 38 U.S.C. § 714(a)(1)). 

The Board subsequently issued the decision in Semenov v. Department of

Veterans Affairs, 2023 MSPB 16, ¶¶ 21-24, in which it found that it was

appropriate to apply the harmful error standard from 5 U.S.C. § 7701(c)(2) to an

agency’s improper application of the substantial evidence standard to its review

of proposed actions taken under 38 U.S.C. § 714. The Board also held that the

Federal Circuit’s holding in Rodriguez applies to all pending cases, regardless of

when the events at issue took place. Id., ¶ 22.

As previously noted, the deciding official sustained the removal based on

her conclusion that the charges were supported by substantial evidence. IAF,

Tab 7 at 21. Further, in her hearing testimony addressing how she analyzed the

charges, the deciding official confirmed that she found, based “on substantial

evidence,” that the recommendations set forth in the removal proposal for both

charges should be sustained. HCD, track 5 at 7:05 (testimony of the deciding

official). The administrative judge and the parties did not have the benefit of

Rodriguez, and they were therefore unable to address its impact on this appeal.

2

 The VA Accountability Act was signed into law on June 23, 2017, prior to all of the

events at issue in this appeal, and so retroactivity considerations are not implicated in

this appeal. Cf. Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1380-82

(Fed. Cir. 2020) (concluding that applying 38 U.S.C. § 714 to conduct that occurred

prior to its enactment would have an impermissible retroactive effect and so agencies

may not use the VA Accountability Act to discipline employees for matters that

occurred prior to the Act’s effective date); Wilson v. Department of Veterans Affairs,

2022 MSPB 7, ¶¶ 29-33 (reversing an adverse action taken under section 714 that was

based on both pre- and post-Act misconduct, concluding that it would not be possible to

sustain the action based solely on the post-Act misconduct because the underlying

instances of misconduct were “so factually interrelated that they cannot be fairly

separated.”) 

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Accordingly, we remand this case for adjudication concerning whether the

agency’s apparent error in applying the substantial evidence standard of proof

was harmful.

On remand, the administrative judge should allow the parties to supplement the

 record regarding whether the agency considered the Douglas factors in analyzing

the penalty.

In Connor v. Department of Veterans Affairs, 8 F.4th 1319, 1325-26 (Fed.

Cir. 2021), the Federal Circuit determined that the agency and the Board must

consider and apply the nonexhaustive factors set forth in Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981), in its review of an agency’s

penalty selection under 38 U.S.C. § 714. See Semenov, 2023 MSPB 16, ¶¶ 44-50

(stating that, consistent with the Federal Circuit’s decision in Connor, 8 F.4th

at 1325-26, the agency and the Board must apply the Douglas factors in

reviewing the penalty in an action taken under 38 U.S.C. § 714). The court held

that, although section 714 precludes the Board from mitigating the agency’s

chosen penalty, “[i]t does not alter the penalty review with respect to the Douglas

factors” and that, although the Board cannot mitigate the penalty, “if the Board

determines that the [agency] failed to consider the Douglas factors or that the

chosen penalty is unreasonable, the Board must remand to the [agency] for a

redetermination of the penalty.” Connor, 8 F.4th at 1326-27 (citing Brenner v.

Department of Veterans Affairs, 990 F.3d 1313, 1325 (Fed. Cir. 2021))

(explaining that, “if the [Board] concludes that the [agency’s] removal decision is

unsupported by substantial evidence, the [Board] should remand to the [agency]

for further proceedings”). 

Here, the administrative judge did not review the agency’s penalty.

Instead, he noted that the Board lacks mitigation authority in actions taken under

38 U.S.C. § 714 and upheld the removal penalty “in accordance with the

[VA Accountability Act],” based solely on the fact that the specifications and the

charges were sustained. ID at 2, 10. Moreover, in the removal decision letter,

6
the deciding official did not reference the Board’s decision in Douglas or cite to

the Douglas factors. IAF, Tab 7 at 21. Nevertheless, in response to a question

during the hearing from the appellant’s counsel concerning whether she

considered the Douglas factors, the deciding official stated that the Douglas

factors were “brought forward by” the Human Resources (HR) staff and appeared

to suggest that she considered this information. HCD, track 5 at 9:45 (testimony

of the deciding official). When later confronted with the fact that the evidence

file did not appear to contain any document referencing the Douglas factors, the

deciding official acknowledged that such information did not appear to be in the

evidence file and stated that she only would have reviewed such information if it

was in the evidence file, seemingly suggesting that she did not consider the

Douglas factors. HCD, track 5 at 15:45, 23:40 (testimony of the deciding

official). When the issue was later revisited, the deciding official indicated that

she may have had a verbal conversation with HR personnel concerning the

Douglas factors. HCD, track 5 at 23:50 (testimony of the deciding official).

When the appellant’s counsel later questioned the deciding official about

her consideration of the Douglas factors, including whether she considered any

mitigating factors in reaching her decision, such as the appellant’s

service-connected disability, agency counsel objected to the line of questioning,

arguing that the Douglas factors were inapplicable under 38 U.S.C. § 714. HCD,

track 5 at 20:30 (testimony of the deciding official). The administrative judge

sustained the agency’s objection, agreeing that the agency was “absolutely right

on this,” referring to the inapplicability of the Douglas factors in appeals of

actions under 38 U.S.C. § 714, and noted that he was unable to mitigate the

agency’s penalty and so he could not “hold [the deciding official] to a standard

that does not legally exist.” HCD, track 5 at 21:45 (statements of the

administrative judge on the record). There was no additional testimony from the

deciding official concerning her consideration of the Douglas factors. 

7
Thus, the record is unclear as to whether the agency properly considered

the Douglas factors in deciding to remove the appellant. The administrative

judge and the parties did not have the benefit of Connor, and thus were unable to

address its impact on this appeal. Therefore, remand is required for this issue as

well. On remand, the administrative judge should permit the parties to submit

additional evidence and argument on the penalty issue. See Semenov,

2023 MSPB 16, ¶ 50. In reviewing the penalty, the administrative judge should

determine whether the agency proved by substantial evidence that it properly

applied the Douglas factors and whether the agency’s penalty selection was

reasonable, and, if not, he should remand the appellant’s removal to the agency

for a new decision on the appropriate penalty. Id. (citing Connor, 8 F.4th

at 1326-27; Sayers, 954 F.3d at 1375-76, 1379).

The administrative judge should permit the parties to supplement the record on

the appellant’s EEO reprisal and disability discrimination affirmative defenses,

and he should make new findings on those claims on remand. 

The administrative judge found that the appellant failed to prove his

affirmative defenses of retaliation for prior EEO activity and discrimination based

on his disability. ID at 8-10. The appellant does not directly challenge the

administrative judge’s finding that he did not prove his affirmative defenses on

review. PFR File, Tab 1. 

In making his findings regarding the appellant’s affirmative defenses of

disparate treatment disability discrimination and reprisal for prior EEO activity,

the administrative judge concluded that the appellant failed to show that his

disability or his prior EEO activity was a motivating factor in his removal, and so

he failed to prove these affirmative defenses. ID at 8-9 (citing Savage v.

Department of the Army, 122 M.S.P.R. 612, ¶¶ 48, 51 (2015), overruled by

Pridgen v. Office of Management and Budget, 2022 MSPB 31). In the period

since the administrative judge issued his initial decision, we clarified the

evidentiary standards and burdens of proof for disparate treatment disability

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discrimination and EEO reprisal claims in Pridgen, 2022 MSPB 31, ¶¶ 20-25, 40,

42, 44-47. Here, the appellant alleged reprisal for his prior activity of filing an

EEO complaint in July 2017, stating that the agency discriminated against him

based on his disabilities. IAF, Tab 7 at 149-56, Tab 13 at 5, Tab 16 at 4. He also

alleged that the agency discriminated against him on the basis of his

service-connected disabilities by removing him. IAF, Tab 7 at 149-56, Tab 13

at 5, Tab 16 at 4.

In the proceedings on remand, the administrative judge should advise the

parties of the standards set forth in Pridgen, provide them with an opportunity to

present argument and evidence, and hold a supplemental hearing on the

appellant’s affirmative defenses to permit the parties to address these standards.

He should then apply the standards set forth in Pridgen in the remand initial

decision.

On remand, the administrative judge should consider in the first instance the

appellant’s claim that he was removed in retaliation for providing assistance to

another employee with her EEO complaint as an affirmative defense under

 5 U.S.C. § 2302(b)(9)(B). 

In an order summarizing the prehearing conference, the administrative

judge identified the affirmative defenses the appellant was raising as including a

claim that his removal was motivated by retaliatory animus by the agency due to

the appellant’s frequent representation of coworkers in their EEO complaints up

until May 5, 2017. IAF, Tab 16 at 4. Under the Whistleblower Protection

Enhancement Act of 2012, a prohibited personnel practice affirmative defense

asserted in an adverse action appeal that independently could form the basis of an

individual right of action appeal must be analyzed under the burden-shifting

scheme set forth in 5 U.S.C. § 1221(e). Alarid v. Department of the Army,

122 M.S.P.R. 600, ¶ 12 (2015); Bryant v. Department of Veterans Affairs,

26 F.4th 1344, 1348 (Fed. Cir. 2022) (applying the same burden-shifting scheme

to whistleblower reprisal affirmative defenses in actions taken under 38 U.S.C.

§ 714). Under 5 U.S.C. § 2302(b)(9)(B), protected activity includes “testifying

9
for or otherwise lawfully assisting any individual in the exercise” of any appeal,

complaint, or grievance right. 3 5 U.S.C. § 2302(b)(9)(A)-(B); Alarid,

122 M.S.P.R. 600, ¶ 10. Additionally, the Board has held that an appellant’s act

of assisting another employee in the EEO process constitutes protected activity

under 5 U.S.C. § 2302(b)(9)(B). Marable v. Department of the Army,

52 M.S.P.R. 622, 629-30 (1992) (finding that the appellant’s actions “supporting

an EEO complaint filed by an applicant for a position with the agency”

constituted protected activity under section 2302(b)(9)(B)), superseded on other

grounds by Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446 (2014);

see Viens-Koretko v. Department of Veterans Affairs, 53 M.S.P.R. 160, 163

(1992) (concluding that testifying in favor of another employee at an EEO

hearing constitutes activity protected under 5 U.S.C. § 2302(b)(9)(B)). 

In addition to the prehearing conference summary order, in a motion to

compel the agency’s responses to the appellant’s discovery requests filed before

the hearing, the appellant requested information from the agency concerning the

nature of his coworker’s EEO activity, noting that he needed such information to

support his affirmative defense that the agency removed him in retaliation for his

activity of advocating on EEO matters for other employees. 4 IAF, Tab 23 at 8.

3

 This is distinguishable from 5 U.S.C. § 2302(b)(9)(A)(i), which bars reprisal for an

appellant’s personal exercise of any appeal, complaint, or grievance right granted by

law, rule, or regulation concerning an alleged violation of section 2302(b)(8). Alarid,

122 M.S.P.R. 600, ¶ 12 n.5.

4

 At the hearing, the administrative judge denied the agency’s motion in limine

requesting that the appellant’s affirmative defense claims be excluded from the appeal,

and sustained, in part, the appellant’s motion to compel the agency’s response to its

discovery requests. HCD, track 1 at 2:00; IAF, Tabs 22-23, 25. Although the

administrative judge did not sustain the portion of the appellant’s motion that requested

information pertaining to this affirmative defense, he noted that he would permit the

witnesses to provide testimony concerning this affirmative defense, and the relevant

witnesses provided such testimony during the hearing. HCD, track 1 at 5:10 (statements

of the administrative judge on the record). Additionally, the administrative judge

admitted into the record the appellant’s prehearing submissions regarding his

affirmative defenses, over the agency’s objections. HCD, track 8 at 10:20 (statements

of the administrative judge on the record). Finally, in the initial decision, the

administrative judge ultimately considered the appellant’s other affirmative defenses

10
The administrative judge also granted the appellant’s requested witness who was

to provide testimony relevant to the appellant’s claim of reprisal for participating

in EEO activity on behalf of another employee, and that witness testified at the

hearing on those matters. IAF, Tab 7 at 230-31, Tab 16 at 4; HCD, track 7

(testimony of the appellant’s coworker). Nevertheless, the administrative judge

did not address this affirmative defense in the initial decision. ID at 8-10. He

also did not set forth the appellant’s burden of proving this affirmative defense in

the prehearing conference orders, nor did the agency’s pleadings place the

appellant on notice of his burden of proving this affirmative defense. IAF,

Tabs 16, 21; see Burgess v. Merit Systems Protection Board, 758 F.2d 641,

643-44 (Fed. Cir. 1985) (stating that the administrative judge must provide the

appellant with explicit information on what is required to establish an appealable

jurisdictional issue); see also Easterling v. U.S. Postal Service, 110 M.S.P.R. 41,

¶ 11 (2008) (stating that an administrative judge’s failure to provide an appellant

with proper Burgess notice can be cured if the agency’s pleadings contain the

notice that was lacking). 

Although the appellant has not directly challenged the administrative

judge’s failure to address this claim in his petition for review, we conclude that

he has not waived or abandoned this claim. See Thurman v. U.S. Postal Service,

2022 MSPB 21, ¶ 18 (summarizing factors to be considered when determining

whether an appellant waived or abandoned an affirmative defense, including the

clarity with which the appellant raised the affirmative defense, the degree to

which he pursued the defense after raising it, and the likelihood that the

presumptive abandonment was the product of misleading or incorrect information

provided by the agency or the Board). 

On remand, the administrative judge should provide the parties with an

opportunity to present evidence and argument, including a supplemental hearing,

that were identified in the prehearing conference summary order. IAF, Tab 16 at 3-4,

6-10; ID at 8-10.

11
addressing whether the agency’s use of the substantial evidence standard in the

removal decision constituted harmful error. See Semenov, 2023 MSPB 16, ¶ 24.

The administrative judge should also permit the parties to supplement the record

regarding whether the agency considered the Douglas factors in analyzing the

penalty. Finally, the administrative judge should address the appellant’s

affirmative defenses in the remand initial decision as specified herein.

ORDER

For the reasons discussed above, we remand this case to the Atlanta

Regional Office for further adjudication in accordance with this Remand Order. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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