UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL C. MARQUART,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

SF-0752-14-0714-I-1

DATE: December 8, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Michael C. Marquart, Lewistown, Montana, pro se. 

Kevin D. Mack, Esquire, Sacramento, California, 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 

sustained his 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 administrative 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 and AFFIRM the initial decision, which is now the Board’s 

final decision. 5 C.F.R. § 1201.113(b). 

¶2 The appellant filed an appeal of the agency’s action removing him from the 

position of State Chief Ranger,

2 GS-13, with the agency’s Bureau of Land 

Management, Office of Law Enforcement and Security, based on charges of 

Conduct Unbecoming a Federal Employee and Refusal to Comply with a Proper 

Order. Initial Appeal File (IAF), Tab 1. Following an investigation conducted by 

the Office of Professional Responsibility into allegations of egregious misconduct 

by the appellant during a meeting at the Hilton Garden Inn, Reno, Nevada, and at 

the Burning Man Event on August 24, 2013, the agency proposed the appellant’s 

removal based on three charges. IAF, Tab 4, Subtab 4h. After the appellant’s 

oral and written responses, the agency sustained two of the charges and removed 

the appellant on July 1, 2014. Id., Subtab 4b. 

¶3 On appeal, the appellant challenged the charges and raised claims of 

disability discrimination based on a perceived disability and retaliation for filing 

equal employment opportunity (EEO) complaints. IAF, Tabs 1, 17. After 

 2 The record reflects that the appellant served as the principal technical expert and 

authority on Ranger operations within Nevada, as well as the key advisor to the Special 

Agent-in-Charge (SAC) and to the Nevada State Leadership Team on all areas of law 

enforcement-related activities throughout the state of Nevada. 
3

holding a hearing, the administrative judge sustained all of the specifications and 

both charges, finding the sustained misconduct very serious. Initial Decision (ID)

at 9-16. The administrative judge found that the appellant failed to demonstrate 

by a preponderance of the evidence his claim of unlawful discrimination based on 

disability. ID at 19. The administrative judge found further that the appellant 

failed to establish a genuine nexus between the protected activity and the adverse 

employment action, and thus, failed to demonstrate by preponderant evidence his 

claim of unlawful retaliation based on his EEO complaints. ID at 21. 

¶4 The appellant has filed a petition for review challenging all of the 

administrative judge’s factual findings and reasserting his version of what 

occurred during the relevant incidents. 3

 Petition for Review (PFR) File, Tab 4. 

Regarding the first specification of Charge 1, Conduct Unbecoming a Federal 

Employee, the appellant asserts that the administrative judge mischaracterized 

both a sworn statement provided by one witness and the testimony of other 

witnesses regarding the Hilton Garden Inn incident. Id. at 5-9. Regarding the 

second specification, the appellant asserts that the administrative judge erred in 

relying on the inconsistent testimony of several witnesses rather than the 

appellant’s testimony about what occurred during the incident in question. Id. 

at 2-8, 10-13. 

¶5 We have considered the appellant’s arguments on review concerning the 

administrative judge’s weighing of the evidence for these specifications under 

Charge 1; however, the applicable law and the record evidence support the 

administrative judge’s findings that the agency proved by preponderant evidence 

the charged misconduct of Conduct Unbecoming a Federal Employee. Thus, we 

discern no reason to reweigh the evidence or substitute our assessment of the 

record evidence for that of the administrative judge. Crosby v. U.S. Postal 

Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the 

 3 The agency did not file a response to the appellant’s petition for review. 
4

administrative judge’s findings when 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); 

see Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (the 

Board may overturn an administrative judge’s credibility determinations that are 

implicitly or explicitly based on demeanor only when it has “sufficiently sound” 

reasons for doing so). 

¶6 Here, the administrative judge thoroughly addressed the record evidence, 

including the hearing testimony and the appellant’s version of the incidents, and 

found that “based on the totality of the evidence,” the agency proved 

Specifications 1 and 2 by preponderant evidence. ID at 12, 14. In making this 

determination, the administrative judge found the testimony of the agency’s 

witnesses to be more credible than that of the appellant and his witness. Id. 

Thus, the administrative judge found that the appellant engaged in the conduct as 

alleged and that his statements and behavior constituted Conduct Unbecoming a 

Federal Employee, particularly for a law enforcement officer. Id. While the 

appellant disagrees with the administrative judge’s findings, his bare assertions 

are insufficient to warrant disturbing the administrative judge’s thorough and 

well-reasoned conclusions. 

¶7 To the extent the appellant asserts that because he never verbally or 

physically threatened anyone with his weapon the agency failed to prove 

Specification 2, he ignores that the agency did not charge him with making a 

threat. PFR File, Tab 4 at 12. Rather, the agency charged the appellant with 

Conduct Unbecoming a Federal Employee. Consequently, the agency was not 

required to prove that a threat had occurred. See Wiley v. U.S. Postal Service, 

102 M.S.P.R. 535, ¶¶ 8-11 (2006) (finding that, where an agency charged an 

employee with “improper conduct/violation of zero tolerance policy on violence 

in the work place,” based on allegations that he made threatening remarks in the 
5

presence of coworkers, the agency was not required to prove that his remarks 

constituted a threat), aff’d, 218 F. App’x 1001 (Fed. Cir. 2007). 

¶8 As to Charge 2, Refusal to Comply with a Proper Order, the appellant 

admits that he did not comply with the direct orders from his supervisors, the 

SAC and the Assistant Special Agent in Charge (ASAC), to leave the 2013 

Burning Man Event, and he reasserts that he “was not obligated to comply with 

the directives/orders because doing so would have jeopardized office and public 

safety and, as such, it was an illegal order.” PFR File, Tab 4 at 13. Yet, as the 

administrative judge correctly found, an employee does not have the unfettered 

right to disregard an order based on his belief that the order is not proper; rather, 

he must first comply with the order and then register his complaint. ID at 15-16; 

Bowen v. Department of the Navy, 112 M.S.P.R. 607, ¶ 15 (2009), aff’d, 402 F. 

App’x 521 (Fed. Cir. 2010). While there is no dispute that exceptions to the 

requirement that agency orders be followed apply where obedience would place 

the employee in a clearly dangerous situation or cause irreparable harm to the 

agency, see Pedeleose v. Department of Defense, 110 M.S.P.R. 508, ¶ 17, aff’d, 

343 F. App’x 605 (Fed. Cir. 2009), we agree with the administrative judge that 

neither circumstance is present here, ID at 16.

¶9 On review, the appellant asserts for the first time that the agency failed to 

properly complete the applicable Standard Form 50s (SF-50s) to certify the 

designations of the SAC and ASAC and that the directive to leave the Burning 

Man Event was rendered “irrelevant or unlawful.” PFR File, Tab 4 at 15. 

However, 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, even if the 

SF-50s were not properly completed, as the appellant alleges, this still would not 

relieve him of his burden to first comply with the order and then register his 

complaint. Bowen, 112 M.S.P.R. 607, ¶ 15. Although there is an exception for 
6

clearly unlawful orders, we discern no basis for applying this exception here 

where there is no indication that the directive violated a law or regulation. See

Pedeleose, 110 M.S.P.R. 508, ¶ 18. Therefore, this argument provides no basis 

upon which to disturb the initial decision. 

¶10 Additionally, the appellant challenges the administrative judge’s findings 

that he has not established his affirmative defenses. Specifically, the appellant 

reasserts that the agency perceived him as having a mental or physical 

impairment, and thus, the agency’s actions against him, i.e., his placement on 

involuntary leave, the suspension of his enforcement authority, and his removal, 

were all prohibited actions under the Americans with Disabilities Act. PFR File,

Tab 4 at 16-20. However, the administrative judge thoroughly addressed the 

appellant’s arguments and he has provided no basis upon which to disturb them. 

¶11 Because a hearing was held and the record was complete, the administrative 

judge proceeded to the ultimate determination of whether the appellant met his 

burden of proving discrimination. ID at 18. After weighing all of the evidence, 

the administrative judge found that “the agency articulated legitimate, 

nondiscriminatory reasons for the appellant’s removal with the two charges 

sustained by the deciding official in his Decision letter and [the agency] has thus 

demonstrated by clear and convincing evidence that it would have taken the same 

action absent the discriminatory motive.” Id. The administrative judge also 

found that the appellant failed to provide any evidence that the agency’s action 

was pretextual, or that the real reason for his removal was because of a perceived 

mental disability or impairment. Id. In addition, the administrative judge found 

credible the testimony from agency officials that the basis for the appellant’s 

removal was his conduct and not any disability, and that while there were 

comments about the appellant’s bizarre and erratic behavior, none of the 

individuals commented or perceived that the appellant was mentally disabled. ID

at 19. Finally, the administrative judge found that the appellant failed to provide 
7

any comparator employees who might have been similarly situated to him to 

support a disparate treatment theory. 

¶12 While the appellant reasserts on review that the agency perceived him as 

having a mental or physical impairment and he relies on comments in the 

agency’s report of investigation to support the claim, PFR File, Tab 4 at 17-20, 

the administrative judge thoroughly reviewed all of the evidence and set forth 

reasoned findings as to why the appellant failed to prove his disability 

discrimination claim, ID at 19. The applicable law and the record evidence 

support these findings and we discern no reason to reweigh the evidence or 

substitute our assessment of the record evidence for that of the administrative 

judge. See Crosby, 74 M.S.P.R. at 105-06. 

¶13 As to the appellant’s contention that his removal was retaliation for 

engaging in protected activity and that he demonstrated a genuine nexus between 

the retaliation and his removal, we disagree. Specifically, the appellant reasserts 

that, once he filed his EEO complaints, the agency subjected him to retaliatory 

animus and adverse employment actions. PFR File, Tab 6 at 27. The 

administrative judge, however, again fully considered the evidence and made 

findings on this affirmative defense and the appellant’s mere disagreement with 

these findings on review does not warrant disturbing the initial decision. 

¶14 The appellant also argues that the administrative judge’s rulings “during the 

course of the appeal of the initial decision were not consistent with required 

procedures or involved an abuse of discretion.” PFR File, Tab 4 at 29-31. In 

particular, the appellant contends that the administrative judge abused her 

discretion when she compelled him to testify, despite his attorney’s objections. 

¶15 The record reflects that the appellant was requested and approved as a 

witness for both the agency and the appellant. IAF, Tab 14. The record further 

reflects that, when the appellant’s attorney chose not to have the appellant testify 

at the conclusion of his case and asserted that the agency could not now call the 

appellant to testify because it had not called him during its case in chief, the 
8

administrative judge held a discussion on the record. IAF, Tab 25, Hearing 

Compact Disc (HCD). During this discussion, the appellant’s attorney confirmed 

that both parties had requested the appellant as a witness. Id.; IAF, Tab 17. The 

administrative judge reminded the appellant’s attorney that, prior to the start of 

the hearing, the agency agreed to defer its questioning of the appellant until after 

he was questioned by his own attorney so that the appellant would have to testify 

only once. IAF, Tab 25, HCD. The administrative judge further advised the 

appellant’s attorney that, based on that agreement, the agency’s decision not to 

call the appellant as a witness during its case in chief did not preclude the agency 

from calling him to testify, even though he was not testifying in his own defense. 

Id. Moreover, and contrary to the appellant’s assertion on review, the record 

reflects that his attorney did not object to the administrative judge’s ruling on this 

matter and in fact conceded that the agency could call the appellant as a witness. 

Id. Accordingly, we find no merit to the appellant’s arguments in this regard. 

See Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 12 (2013) 

(determining that an administrative judge has wide discretion to control the 

proceedings before him, including the authority to include or exclude testimony). 

¶16 The appellant also asserts that the administrative judge abused her 

discretion by failing to grant the parties the opportunity to submit closing 

arguments. PFR File, Tab 4 at 29. The appellant, however, has not cited to any 

law, rule, or regulation requiring that he be afforded an opportunity to make a 

closing argument or file a closing brief. In fact, closing arguments and the 

submission of post-hearing briefs are committed to the administrative judge’s 

sound discretion, see Bowen, 112 M.S.P.R. 607, ¶ 18 n.6; Ford v. Department of 

the Navy, 43 M.S.P.R. 495, 500 (1990), and the appellant has shown no abuse of 

discretion in this regard. 

¶17 Additionally, the appellant raises numerous arguments asserting that the 

agency did not comply with discovery below, PFR File, Tab 4 at 31-34, including 

that he was not provided complete transcripts of the recorded interview of at least 
9

one witness prior to the close of the record and that the agency did not comply 

with his request to produce documents during discovery. Id. However, our 

review of the record reflects that the appellant, who was represented by counsel, 

failed to file a motion to compel in accordance with the Board’s regulations. See 

5 C.F.R. § 1201.73(c) (indicating the requirements for a motion to compel). The 

Board does not get involved in discovery disputes unless or until a motion to 

compel has been filed. The appellant’s failure to file a motion to compel below 

precludes him from raising a discovery dispute for the first time on review. See 

Szejner v. Office of Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 

167 F. App’x 217 (Fed. Cir. 2006). In any event, even if the appellant had filed a 

motion to compel, he has not shown how the information he sought to discover 

would have changed the result in this appeal. See id.

¶18 Finally, the appellant challenges the administrative judge’s determination 

that the penalty of removal is reasonable. The appellant raises numerous 

arguments as to how the penalty is not reasonable and that it does not promote the 

efficiency of the service and he asserts that the agency failed to consider and give 

weight to all of the relevant Douglas factors. 4

 PFR File, Tab 4 at 31-33. 

¶19 However, it is well settled that not all of the Douglas factors are pertinent 

in every case. See Luna v. Social Security Administration, 85 M.S.P.R. 301, ¶ 16 

(2000). Further, an agency need not demonstrate that it considered all mitigating 

factors in determining the penalty; similarly, the administrative judge need not 

contemplate mitigating factors not identified by the appellant as significant. See 

Yeschick v. Department of Transportation, 801 F.2d 383, 385 (Fed. Cir. 1986). In 

this case, the deciding official considered the appellant’s years of service, the 

egregiousness of the charged misconduct, particularly in light of his position as a 

 4 The Board will review an agency-imposed penalty only to determine if the agency 

considered all the relevant factors and exercised management discretion within tolerable 

limits of reasonableness. Douglas v. Veterans Administration, 5 M.S.P.R. 280,

306 (1981).
10

law enforcement officer, and whether there were mitigating circumstances that 

would warrant mitigation of the penalty. The deciding official also found the 

appellant’s potential for rehabilitation to be poor. Thus, the record shows that the 

deciding official properly considered the relevant Douglas factors. Moreover, the 

administrative judge also thoroughly addressed the reasonableness of the penalty. 

ID at 22-25. In doing so, the administrative judge considered the relevant 

Douglas factors and the egregiousness of the misconduct and found the removal 

reasonable, especially in light of the fact that the appellant accepted no 

responsibility for his misconduct and he failed to appreciate the gravity of what 

he did. The administrative judge also considered that the appellant acknowledged 

that he was given orders, that he understood them, and that he was provided 

several opportunities to comply but refused to do so. ID at 25. Thus, she found 

no circumstances that would warrant mitigating the removal to a lesser penalty. 

Id. Under all of these circumstances, we find no justification to disturb the 

initial decision. 

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 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:
11

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 

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. § 2000e-5(f) and 

29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board