UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PHILLIP STEPHEN JOHNSON,

Appellant,

v.

DEPARTMENT OF COMMERCE,

Agency.

DOCKET NUMBER

DC-0752-13-1531-I-1

DATE: April 8, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Douglas Hartnett, Esquire, Washington, D.C., for the appellant.

David M. Brown, Washington, D.C., and Lindsay Young, Esquire, Silver 

Spring, Maryland, 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 removal action. 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

or the erroneous application of the law to the facts of the case; the 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. We MODIFY 

the initial decision to supplement the administrative judge’s analysis of the 

appellant’s whistleblowing retaliation claim, but we agree with the administrative 

judge’s implicit finding that the appellant failed to prove this affirmative defense. 

Except as expressly modified by this Final Order, we AFFIRM the initial 

decision.

BACKGROUND

¶2 Effective July 13, 2013, the agency removed the appellant from his Physical 

Science Technician position based on five specifications of the charge of conduct 

unbecoming a federal employee. Initial Appeal File (IAF), Tab 1 at 13-19, Tab 9 

at 5. The appellant appealed his removal to the Board. IAF, Tab 1. After 

holding the requested hearing, the administrative judge issued an initial decision 

affirming the removal action. IAF, Tab 36, Initial Decision (ID) at 1, 23. The 

administrative judge sustained only specification four of the conduct unbecoming 

charge, found a nexus between the sustained misconduct and the efficiency of the 

service, and determined that the penalty was within the bounds of reasonableness. 

ID at 8-14, 20-23. The administrative judge additionally found that the appellant 

failed to prove his claim of retaliation for protected union activity. ID at 14-20.
3

¶3 The appellant has filed a petition for review challenging the administrative 

judge’s finding that the agency presented preponderant evidence proving

specification four of the conduct unbecoming charge. Petition for Review (PFR) 

File, Tab 1. He states that he does not dispute the administrative judge’s finding 

that he failed to prove his affirmative defense of retaliation for protected union 

activity. Id. at 4 n.1. He also does not contest the administrative judge’s findings

regarding nexus and the reasonableness of the removal penalty. See PFR File, 

Tabs 1, 4. The agency has responded in opposition. PFR File, Tab 3. The 

appellant has filed a reply to the agency’s response. PFR File, Tab 4. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 While not raised by the appellant on review, we find that the administrative 

judge failed to address in the initial decision the appellant’s whistleblowing 

retaliation claim under 5 U.S.C. § 2302(b)(8), consisting of an allegation of 

workplace bullying that was allegedly known by the proposing official. See IAF, 

Tab 28 at 16, Tab 31 at 1-3, Tab 33 at 5. Although we ultimately agree with the 

administrative judge’s implicit finding that the appellant failed to prove his 

whistleblowing retaliation claim, we are modifying and supplementing the 

administrative judge’s analysis to expressly address this affirmative defense. 

¶5 An appellant may demonstrate that a protected disclosure was a contributing 

factor in a personnel action through circumstantial evidence, such as the acting 

officials’ knowledge of the disclosure and the timing of the personnel action. 

Schneider v. Department of Homeland Security, 98 M.S.P.R. 377, ¶ 16 (2005). 

An appellant may establish an official’s constructive knowledge of a protected 

disclosure by demonstrating that an individual with actual knowledge of the 

disclosure influenced the official accused of taking the retaliatory action. Aquino 

v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014). The 

Supreme Court has adopted the term “cat’s paw” to describe a case in which a 

particular management official, acting because of an improper animus, influences 
4

an agency official who is unaware of the improper animus when implementing a 

personnel action. Id. (citing Staub v. Proctor Hospital, 131 S. Ct. 1186, 1190, 

1193-94 (2011)). Under the cat’s paw theory, an appellant can demonstrate that a 

prohibited animus toward a whistleblower was a contributing factor in a 

personnel action by showing by preponderant evidence that an individual with 

knowledge of the appellant’s protected disclosure influenced the deciding official 

accused of taking the personnel action. Aquino, 121 M.S.P.R. 35, ¶ 23.

¶6 We find that the appellant did not present evidence below that his allegedly 

protected disclosure was a contributing factor in his removal. In the instant case, 

the appellant has not alleged or proven that the deciding official had knowledge

of the alleged protected disclosure, or that the proposing official’s alleged 

knowledge should be imputed to the deciding official. See Visconti v. 

Environmental Protection Agency, 78 M.S.P.R. 17, 23-24 (1998); cf. Dorney v. 

Department of the Army, 117 M.S.P.R. 480, ¶¶ 11-13 (2012) (finding that a lack 

of actual knowledge by a deciding official is not dispositive where an appellant 

sought corrective action in an individual right of action appeal). The appellant 

has not contested the deciding official’s testimony that she was unaware of the 

protected disclosure. See IAF, Tab 34, Hearing Compact Disc 1 (HCD1) 

(7:04:35-7:04:50). Further, the appellant has not demonstrated that the proposing

official had a prohibited animus toward the appellant and also has not contested 

the proposing official’s testimony that he did not consider the appellant’s 

disclosure when proposing the removal action. See id. (5:07:50-5:08:07). We 

find that the appellant’s reference to a disclosure allegedly made to the proposing 

official is insufficient to establish by preponderant evidence that the proposing 

official influenced the deciding official, and we likewise find that his allegation 

does not impute knowledge of the appellant’s protected disclosure to the deciding 

official. See Aquino, 121 M.S.P.R. 35, ¶ 23; Visconti, 78 M.S.P.R. at 23-24.

¶7 In his petition for review, the appellant disputes the administrative judge’s 

finding that the agency proved specification four of the conduct unbecoming 
5

charge by a preponderance of the evidence.

2

 PFR File, Tabs 1, 4. The agency 

based specification four on the appellant’s alleged vandalism of his first-level 

supervisor’s vehicle at the worksite. IAF, Tab 1 at 8-11, 14-15. Specifically, the 

agency asserts that the appellant backed his vehicle into a parking spot next to his 

supervisor’s vehicle in the visitor parking lot, punctured the tire of his

supervisor’s vehicle, and then drove away into the parking garage. Id. at 9-10, 

14-15. In sustaining the conduct unbecoming charge, the administrative judge 

considered the testimony of the appellant’s first-line supervisor, the site security 

and safety manager, the appellant’s coworker who repaired the supervisor’s tire, a 

tire shop owner, and the appellant. ID at 8-12. The administrative judge also 

relied on security camera videos in sustaining the specification. ID at 8-9, 11-12. 

The administrative judge determined that the coworker’s testimony regarding how 

the tire damage might have occurred was not credible because of his expressed 

bias against management. ID at 11. The administrative judge further did not 

credit the appellant’s testimony that he stayed inside his car for the entire 

6 minutes he was parked next to his supervisor’s vehicle because the security 

video showed a person moving around his and his supervisor’s vehicles during 

the same time period. ID at 11-12.

¶8 The appellant contests the administrative judge’s credibility findings 

regarding both his and his coworker’s testimony. PFR File, Tab 1 at 6, 10, 14-16, 

18, Tab 4 at 5, 7. 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. Haebe v. 

Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Where, as here, an 

administrative judge has heard live testimony, his credibility determinations must 

be deemed to be at least implicitly based upon the demeanor of the witnesses. 

 2 A preponderance of the evidence is that degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
6

Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009). The Board 

may overturn such determinations only when it has “sufficiently sound” reasons 

for doing so. Haebe, 288 F.3d at 1301. Thus, the Board may overturn 

demeanor-based credibility determinations when the administrative judge’s 

findings are incomplete, inconsistent with the weight of the evidence, and do not 

reflect the record as a whole. Rapp v. Office of Personnel Management, 

108 M.S.P.R. 674, ¶ 13 (2008). We find that the appellant has not provided any 

such sufficiently sound reason because the administrative judge’s credibility 

determinations are consistent with the record.

¶9 The appellant argues that his coworker’s testimony that the appellant’s 

supervisor is an “exception” to his negative perception of management overall 

shows that he is not biased. PFR File, Tab 1 at 10; see HCD1 (3:58:25-3:59:45). 

However, we agree with the administrative judge that the coworker’s statements 

that members of management are “the enemy” and “vindictive” demonstrate 

strong bias. ID at 10-11; HCD1 (3:56:40-3:57:20); see Hillen v. Department of 

the Army, 35 M.S.P.R. 453, 458 (1987) (an administrative judge must consider a 

witness’s bias to resolve credibility issues). 

¶10 The appellant further argues that the administrative judge improperly 

discounted his testimony that he did not leave his car during the time it was

parked next to his supervisor’s vehicle. PFR File, Tab 1 at 13-14. We find that 

the security video, which shows a person moving around the appellant’s and the 

supervisor’s vehicles, supports the administrative judge’s finding that the 

appellant’s version of events is not credible. IAF, Tab 11, Video CD 1 (VCD1), 

Camera 25 (18:28:50-18:34:38); see Hillen, 35 M.S.P.R. at 458 (an administrative 

judge must consider the inherent improbability of the witness’s version of events 

to resolve credibility issues). 

¶11 The appellant also claims that the administrative judge discounted his 

testimony based on his alleged honest misstatement during the hearing that he 

saw a vehicle leave instead of enter the parking garage. PFR File, Tab 1 at 14-15. 
7

The appellant testified that he saw a car leave the parking garage. IAF, Tab 35, 

Hearing CD 2 (HCD2) (2:18:30-2:20:16). Previously, however, the appellant 

consistently maintained in his written reply to the notice of proposed removal and 

in his pleadings that he saw a car enter the parking garage, which is supported by 

the security video. IAF, Tab 9 at 14, Tab 28 at 11, Tab 33 at 11; VCD1, Camera 

25 (18:30:23-18:30:45). We find that the administrative judge properly 

considered the appellant’s alleged honest misstatement that he saw a car leave the 

garage, because its inconsistency with his prior pleadings and the security video 

cast doubt on his testimony. Crane v. Office of Personnel Management, 

55 M.S.P.R. 16, 19 n.* (1992), aff’d, 996 F.2d 1235 (Fed. Cir. 1993) (Table); see 

Hillen, 35 M.S.P.R. at 458 (an administrative judge must consider any prior 

inconsistent statement by the witness and the contradiction of the witness’s 

version of events by other evidence to resolve credibility issues). Moreover, even 

assuming that the appellant made an honest misstatement, we find that the 

administrative judge did not base the appellant’s credibility determination solely

on this misstatement but also on his review of the security camera videos. ID at 

11-12. Therefore, we defer to the administrative judge’s credibility 

determinations because they were implicitly based on the witnesses’ demeanor 

and the appellant has not presented a sufficiently sound reason to overturn them.

¶12 The appellant next disputes the administrative judge’s finding that 

vandalism occurred and asserts that it is equally likely that debris could have 

punctured the supervisor’s tire. PFR File, Tab 1 at 6-12, Tab 4 at 5-6. He argues

that the administrative judge failed to consider the appellant’s testimony that the 

parking garage was closed the previous evening for cleaning and there was 

construction debris in the area around the parking lot that could have punctured

his supervisor’s tire. PFR File, Tab 1 at 9. He similarly alleges that the 

administrative judge failed to consider his coworker’s testimony that he had to 

ask the supervisor to turn the wheel of his vehicle outward in order to repair the 

tire, and the tire shop owner’s testimony that it would be difficult to puncture a 
8

tire in the same location as on the supervisor’s tire. Id. The administrative 

judge’s failure to mention all of the evidence of record does not mean that he did 

not consider it in reaching his decision. Marques v. Department of Health & 

Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 

1985) (Table). The appellant also argues that the administrative judge

mischaracterized the tire shop owner’s testimony that it is “probably not” possible 

to puncture a tire with a drill bit by stating in the initial decision that it is

“possible.” PFR File, Tab 1 at 9. We note that the administrative judge actually 

stated in the initial decision that the tire shop owner testified that it is “difficult to 

punch through the treat, though, not impossible . . . .” ID at 10. We find that, the 

appellant’s contentions in this regard do not warrant an outcome different from 

that of the initial decision. See 5 C.F.R. § 1201.115(a)(1). We agree with the 

administrative judge that it was more likely than not that vandalism caused the 

tire puncture when considering the administrative judge’s credibility 

determinations and the entire record, including the security videos. See IAF, Tab 

11, Video CDs 1-2.

¶13 The appellant further argues that the administrative judge failed to prove by 

preponderant evidence that the appellant himself committed vandalism. PFR File, 

Tab 1 at 12-16, Tab 4 at 6-7. The appellant contends that the administrative 

judge erroneously inferred that the appellant knew what type of vehicle his 

supervisor drove at the time of the alleged events on November 17, 2012, because

the appellant admitted during the hearing that he parked next to his supervisor’s 

vehicle. PFR File, Tab 1 at 12-13. We are not persuaded that the administrative 

judge misconstrued the appellant’s consistent claim that he unknowingly parked 

next to his supervisor’s vehicle. See IAF, Tab 9 at 14, Tab 33 at 11; see also

HCD2 (2:11:39-2:12:29). The administrative judge did not state that the 

appellant admitted that he knew on November 17, 2012, that he was parking next 

to his supervisor’s vehicle. ID at 10-11. However, we agree with the 

administrative judge’s implicit finding that the appellant had prior knowledge of 
9

his supervisor’s vehicle on November 17, 2012, because of the appellant’s 

inferred motive against his supervisor for proposing his suspension. See ID at 8, 

12, 20, 22-23. Thus, we find that the administrative judge did not misconstrue 

the appellant’s testimony or argument. 

¶14 The appellant next argues that the administrative judge’s alternative theory 

of an accomplice is a “leap of logic” that, if true, would show that the appellant 

himself did not commit vandalism. PFR File, Tab 1 at 13. We need not reach 

this argument because the agency has shown by preponderant evidence that the 

appellant punctured his supervisor’s tire. See ID at 11-12; see also IAF, Tab 11, 

Video CDs 1-2. Therefore, even assuming that the appellant’s argument 

regarding the administrative judge’s alternative theory is valid, the result is 

immaterial to the outcome of this case.

¶15 Finally, the appellant argues that the circumstantial evidence in this case 

does not support the conduct unbecoming charge by preponderant evidence. PFR 

File, Tab 1 at 10-12, 16-17, Tab 4 at 4-7. When direct evidence to support a 

given charge is absent, circumstantial proof may be offered to establish the 

charge if such evidence makes any fact of consequence more or less probable than 

it would be without the proffered circumstantial proof. Fouquet v. Department of 

Agriculture, 82 M.S.P.R. 548, ¶ 39 (1999). When there is no significant contrary 

proof, circumstantial evidence can constitute proof by preponderant evidence. Id. 

In the present case, we find that the appellant has not offered significant contrary 

proof to rebut the agency’s strong circumstantial evidence in support of the 

conduct unbecoming charge. See id. 

¶16 Thus, the appellant fails to provide on review a compelling reason to disturb 

the administrative judge’s analysis as set forth in the initial decision.

3

 See 

 3 We find that the administrative judge erred by providing notice of “mixed case” 

appeal rights when the appellant did not raise, and the administrative judge did not 

adjudicate, any discrimination claim. However, the administrative judge’s error in 

providing the appellant with notice of mixed case appeal rights has not affected the 

appellant’s substantive rights. See Karapinka v. Department of Energy, 6 M.S.P.R. 
10

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 the administrative judge 

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

reasoned conclusions). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision.

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the United States Court of Appeals 

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

court of appeals must receive your petition for review within 60 days after the 

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If 

you choose to file, be very careful to file on time. You may choose to request 

review of the Board’s decision in the United States Court of Appeals for the 

 

124, 127 (1981) (the administrative judge’s procedural error is of no legal consequence 

unless it is shown to have adversely affected a party's substantive rights).
11

Federal Circuit or any other court of appeals of competent jurisdiction, but not 

both. Once you choose to seek review in one court of appeals, you may be 

precluded from seeking review in any other court.

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information about the United States 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, and 11. 

Additional information about other courts of appeals can be found at their 

respective websites, which can be accessed through 

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

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

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for a list of attorneys who have expressed 

interest in providing pro bono representation for Merit Systems Protection Board 

appellants before the Federal Circuit. The Merit Systems Protection Board
12

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

attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board