UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL J. BROKMEIER,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DE-0752-14-0325-I-1

DATE: April 18, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Peter C. Rombold, Esquire, Junction City, Kansas, for the appellant.

Eric L. Carter, Esquire, Fort Riley, Kansas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

affirmed his reassignment and reduction in grade. Generally, we grant petitions 

such as this one only in the following circumstances: 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. Except as expressly 

MODIFIED to apply the correct analytical framework to the appellant’s 

affirmative defense of reprisal for engaging in activity protected under the 

Rehabilitation Act, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant was a GS-1811-12 Supervisory Criminal Investigator who 

supervised a mixed group of both civilian and military personnel at the agency’s 

Directorate of Emergency Services, Police Provost Marshal Division, Military 

Police Investigations Branch, at Fort Riley, Kansas. On September 9, 2013, the 

appellant’s supervisor, the Chief of Police, directed him to instruct his

subordinates to stop spreading rumors, because there were a number of rumors 

circulating around the workplace, including a sexual harassment rumor involving 

employees within the division. The appellant then held a meeting with three of 

his military staff and stated: “If you are spreading rumors that can harm anyone’s 

career, you are done. [. . .] This is still my office, no more running to the 

Battalion or the Detachment. If you have an issue, come see me.” Initial Appeal 

File (IAF), Tab 6 at 8, 53, 73, 87, 115, 122, 129. Based on that incident, the 

agency issued a notice of proposed removal proposing his removal on charges of 

“reprisal” and conduct unbecoming a Federal employee. Id. at 52-56. The 
3

deciding official mitigated the proposed removal to a reassignment and reduction

in grade effective April 6, 2014. Id. at 27-32.

¶3 On appeal, after conducting a 3-day hearing, the administrative judge issued 

an initial decision that sustained both charges based on his assessment of the 

witnesses’ credibility, including the appellant’s demeanor. IAF, Tab 41, Initial 

Decision (ID) at 6-14. He found that the appellant failed to prove his affirmative 

defenses of disability discrimination, retaliation for protected equal employment 

opportunity (EEO) activity, and harmful error. ID at 15-21. He also found that 

the penalty was within the tolerable bounds of reasonableness. ID at 21-25.

¶4 The appellant petitions for review of the initial decision. Petition for 

Review (PFR) File, Tab 5. The agency responds in opposition to the petition for 

review. PFR File, Tab 7.

ANALYSIS

¶5 The material facts of this appeal are set forth in the initial decision and are 

not in dispute. The appellant admits that he made the following statement during 

the meeting in question:

If you are spreading rumors that can harm anyone’s career, you are 

done. [. . .] This is still my office, no more running to the Battalion 

or the Detachment. If you have an issue, come see me.

IAF, Tab 6 at 8, 53, 73, 87, 115, 122, 129. He does not allege that the agency 

misunderstood what he meant or that the agency took his statement out of 

context. Instead, he alleges on review that he made this remark at the direction of 

his boss, the Chief of Police. PFR File, Tab 5 at 8-11. It is not disputed that the 

Chief instructed the appellant to meet with his subordinates and tell them to stop 

spreading rumors. IAF, Tabs 36-38, Hearing Compact Diskette (HCD) 

(testimony of the Chief). However, the administrative judge found, and we agree, 

that the Chief’s instruction could not reasonably be construed as an order for the 

appellant to threaten his subordinates with removal or to prohibit them from using 

their military chain of command to raise possibly legitimate concerns. ID at 10. 
4

¶6 As noted above, the agency brought two charges based on the incident in 

question. Under the first charge, the agency contended that the appellant 

committed “reprisal” in violation of Army Regulation (AR) 600-20, ¶ 5-12(c), 

Army Command Policy (2008), a section of the agency’s policy regarding the 

Military Whistleblower Protection Act. IAF, Tab 6 at 52, 136-38. Therefore, the 

agency had to prove that the appellant’s actions violated the regulation. IAF, 

Tab 6 at 52, 137; see Marler v. Department of Veterans Affairs, 58 M.S.P.R. 116, 

119-20 (1993). 

¶7 The general statement that precedes the enumerated subparagraph of 

AR 600-20 states that agency employees may not take acts of reprisal against 

soldiers for filing discrimination complaints or sexual harassment charges. IAF, 

Tab 6 at 137. In the specific subparagraph cited in the notice of proposed 

removal, the regulation states:

No employee or Soldier may take or threaten to take an unfavorable 

personnel action, or to withhold or threaten to withhold a favorable 

personnel action, in reprisal against any Soldier for making or 

preparing a protected communication.

Id. 

¶8 The agency did not provide the portion of the regulation defining the term 

“protected communication.” The version of AR 600-20 released in 2014 defines 

a “protected communication” as a communication within the chain of command or 

to other specific individuals (e.g., a Member of Congress, an Inspector General, 

an investigator, an auditor, etc.), which the member of the Armed Forces 

“reasonably believes evidences a violation of law or regulation, including a law 

or regulation prohibiting sexual harassment or unlawful discrimination, gross 

mismanagement, a gross waste of funds or other resources, an abuse of authority, 

or a substantial and specific danger to public health or safety.” AR 600-20, 

¶ 5-12(b) (Nov. 6, 2014); see AR 600-20, ¶ 5-12(c), (d); see also AR 600-20, 

¶ 5-12(b) (July 24, 2020) (providing a more expansive definition of the term 

“protected communication” in the current version of the Army Regulation). 
5

Accordingly, threatening reprisal is misconduct pursuant to the agency’s 

regulations. Moreover, the appellant’s blanket prohibition against “running to the 

Battalion or the Detachment,” would prohibit his subordinate employees from

making a protected communication to the Battalion or the Detachment. We find, 

therefore, that the administrative judge properly construed the first charge. In 

addition, because the appellant admitted making the statement in question, and 

because the statement on its face threatened negative consequences should one of 

the appellant’s subordinates take issues to the Detachment or the Battalion, we 

agree with the administrative judge that the agency proved its first charge. ID 

at 6-12.

¶9 The second charge is a conduct unbecoming charge based on the same 

incident and operative facts as the first charge. To prove a charge of conduct 

unbecoming, the agency is required to demonstrate that the appellant engaged in 

the underlying conduct alleged in support of the broad label. Raco v. Social 

Security Administration, 117 M.S.P.R. 1, ¶ 7 (2011); Canada v. Department of 

Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010). The agency labeled this an 

“alternative” charge in its removal notice. The administrative judge correctly 

concluded that, because the two charges contain slightly diff erent elements of 

proof, they should be treated as separate charges. Campbell v. Department of the 

Air Force, 72 M.S.P.R. 480, 484 (1996); Walker v. Department of the Navy, 

59 M.S.P.R. 309, 318 (1993) (finding that a single set of actions can support more 

than one charge as long as the charges entail different elements of proof). The 

administrative judge further found that the agency proved the second charge by 

preponderant evidence because it demonstrated that the appellant engaged in the 

underlying conduct set forth in the proposal letter, and we see no reason to 

disturb his determination.
6

¶10 As to the agency’s penalty determination, the administrative judge correctly 

found that the agency properly considered the Douglas2factors most relevant to 

the case and reasonably exercised its management discretion. Gray v. 

Government Printing Office, 111 M.S.P.R. 184, ¶ 18 (2009) (stating that the 

Board’s function concerning its review of an agency’s penalty selection is not to 

displace management’s responsibility, but to determine whether management 

exercised its judgment within the tolerable limits of reasonableness). Although 

the agency brought two charges, it indicated that the second charge was an 

alternative charge; as such, there is no evidence in the record that the deciding 

official based his penalty determination on two charges, rather than one. To the 

extent that he did, the reprisal charge alone is sufficient to sustain the penalty. 

See Gaines v. Department of the Air Force, 94 M.S.P.R. 527, ¶ 6 (2003); Luciano 

v. Department of the Treasury, 88 M.S.P.R. 335, ¶ 10 (2001), aff’d, 30 F. App’x 

973 (Fed. Cir. 2002).

¶11 The appellant spends a significant portion of his petition for review 

discussing the nature of the rumors he was directed to “ squelch” and implying 

that the administrative judge’s discussion of the context of the meeting unfairly 

makes his misconduct seem much worse than it actually was. PFR File, Tab 5 

at 16-23. The record reflects that there were a number of rumors circulating in 

the office at the time, including a rumor about a possible reduction in force and 

another one about alleged sexual harassment. However, in their testimony, the 

Chief and the appellant made it abundantly clear that the point of the meeting was 

to discourage the spreading of all rumors regardless of subject matter, not only 

regarding sexual harassment. HCD (testimony of the Chief and the appellant). 

Therefore, to the extent that the administrative judge devoted attention to 

 

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.
7

background information about the nature of the rumors, his decision to do so

provides no reason to disturb the initial decision.

¶12 The appellant argues on review that the length of time between the hearing 

and the issuance of the initial decision means that the administrative judge 

probably forgot the testimony, and this led him to make erroneous fact findings. 

PFR File, Tab 5 at 6-7. The appellant does not identify any material testimony 

that the administrative judge inaccurately recalled and, as stated above, the 

appellant admitted to the core facts underlying the charge. The length of time 

between the hearing and the issuance of the initial decision provides no basis for 

disturbing an initial decision, absent a showing that the appellant’s rights were 

actually prejudiced by the delay. There has been no such showing here.

¶13 Finally, the appellant does not challenge on review the administrative 

judge’s finding that he failed to prove his affirmative defenses. Nevertheless, we 

modify the administrative judge’s analysis of the appellant’s retaliation claim to 

the extent that the underlying activity concerned Rehabilitation Act-protected 

activity. The administrative judge analyzed the appellant’s EEO retaliation 

affirmative defense under the analytical framework set forth in Savage v. 

Department of the Army, 122 M.S.P.R. 612, ¶¶ 48-50 (2015), clarified on other 

grounds by Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, 

¶¶ 30-31 (2016). ID at 18-19. Subsequent to the initial decision, the Board 

issued Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 44-47, 

which clarified that a more stringent standard applies in the context of retaliation 

claims arising under the Rehabilitation Act, such that the appellant must prove 

that his Americans with Disabilities Act-protected activity was a “but-for” cause 

of the retaliation. The appellant’s raising disability discrimination in his EEO 

complaint is protected by the Rehabilitation Act. ID at 18; Pridgen, 2022 MSPB 

31, ¶ 44. However, given the administrative judge’s undisputed finding that the

appellant did not show that his protected activity was a motivating factor in his 

removal, ID at 18-19, we find that the appellant failed to meet the more stringent 
8

“but-for” standard that applies to a Rehabilitation Act retaliation claim.

3

 As to 

the appellant’s remaining affirmative defenses, we see no error in the 

administrative judge’s analysis. See 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 when she considered the evidence as a whole, drew appropriate 

inferences, and made reasoned conclusions); Broughton v. Department of Health 

and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

NOTICE OF APPEAL RIGHTS4

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 may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law appli cable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum.

 

3

In analyzing the appellant’s disability discrimination affirmative defense, the 

administrative judge found the appellant did not prove that his disability was a 

motivating factor in his reassignment and reduction in grade. ID at 15-16. We 

therefore need not reach whether the appellant’s disability was a “but-for” cause of the 

agency’s action. See Pridgen, 2022 MSPB 31, ¶ 40.

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
9

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 
10

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. 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. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 
11

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC 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, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction. 5 The court of appeals must receive your 

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

 

5

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
12

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board