UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

EDWARD GREEN,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-20-0514-I-1

DATE: July 19, 2024 

THIS FINAL ORDER IS NONPRECEDENTIAL1

Gary G. Singh, Esquire, Honolulu, Hawaii, for the appellant.

Yuwynn E. Ho, Esquire, and Evan Richard Gordon, Esquire, Quantico, 

Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

affirmed the agency’s removal action for unacceptable conduct. 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

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
on an erroneous interpretation of statute or regulation or the erroneous application

of the law to 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 and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b). 

The administrative judge found that the appellant failed to prove his

affirmative defense of age discrimination. Initial Appeal File (IAF), Tab 29,

Initial Decision (ID) at 21-23. He further found that the agency established a

nexus between the charged misconduct and the efficiency of the service and that

the penalty of removal was reasonable. ID at 26-29. The parties do not challenge

these findings on review, and we decline to disturb them.

The appellant argues on review that the agency wrongfully charged him

with misconduct and that he did not engage in the alleged racist, sexual, and

threatening acts. Petition for Review (PFR) File, Tab 1 at 1, 3. The

administrative judge found that the agency proved each of the nine specifications

underlying its charge of unacceptable conduct, under which the agency alleged

that the appellant used racial slurs, made derogatory remarks to persons of color,

made sexual jokes to coworkers, and threatened a coworker. ID at 3-20. As set

forth below, we agree with the administrative judge’s findings regarding the

charged misconduct.

The administrative judge’s findings in sustaining each of the specifications

were based in large part on crediting the agency’s witnesses’ testimony over that

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of the appellant’s. Id. The Board must defer to an administrative judge’s

credibility determinations when they are based, explicitly or implicitly, on

observing the demeanor of witnesses testifying at a hearing; the Board may

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

doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).

The Board must give “special deference” to an administrative judge’s

demeanor-based credibility determinations “[e]ven if demeanor is not explicitly

discussed.” Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373

(Fed. Cir. 2016). The Board may only overturn such demeanor-based credibility

determinations when they are incomplete, inconsistent with the weight of the

evidence, and do not reflect the record as a whole. Faucher v. Department of the

Air Force, 96 M.S.P.R. 203, ¶ 8 (2004).

Following a video-conference hearing, the administrative judge found the

appellant’s testimony denying and reframing the alleged misconduct to be

inconsistent, improbable, unpersuasive, and not credible. ID at 4-12, 14-15,

17-20. Instead, he credited the testimony of a Corporal, Lance Corporal, Staff

Sergeant, and Sergeant, finding their testimony unequivocal, persuasive, and

based on personal knowledge as percipient witnesses to the various

specifications. ID at 6-20. Moreover, the administrative judge noted that their

testimony was detailed, specific, consistent with earlier statements and statements

of other witnesses, and not inherently improbable. Id. 

The appellant on review merely denies engaging in the alleged misconduct.

PFR File, Tab 1 at 1. He asserts that he is “not a racist or bigot.” Id. at 3. In

support of this assertion, he points to the fact that his wife and much of his family

is of Asian and Pacific Islander descent, and that most of his friends are

minorities. Id. However, the appellant has provided no evidence or argument

that the administrative judge’s credibility determinations were incomplete,

inconsistent with the weight of the evidence, or did not reflect the record as a

whole. Consequently, he has failed to identify sufficiently sound reasons for

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disturbing those demeanor-based credibility determinations. Haebe, 288 F.3d at

1301. 

The appellant additionally repeats his argument that the agency’s witnesses

were coerced into signing statements in support of the charged misconduct. PFR

File, Tab 1 at 3. For example, he argues that the statements from different

witnesses appear written by someone with a legal background, were in the same

font and writing style, and appeared to include information the witnesses did not

understand. Id. The administrative judge considered these arguments and found

them unpersuasive. ID at 4-7, 9, 11, 23. The appellant offers no new evidence or

argument to support this allegation and rather merely disagrees with the

administrative judge’s analysis. The Board will not disturb an administrative

judge’s findings when he considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions on issues of credibility. Crosby v.

U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of

Health & Human Services, 33 M.S.P.R. 357, 359 (1987). Accordingly, we

discern no reason to disturb the administrative judge’s demeanor-based credibility

determinations and thus agree that the agency sufficiently proved the charged

misconduct. 

The appellant also argues that the agency committed harmful procedural

error by not allowing his lawyer or a union representative to be present at

investigative interviews during which he was questioned about the charged

misconduct. PFR File, Tab 1 at 1-2. The administrative judge considered this

argument and found that the appellant was properly advised of his option to have

a union representative at the interviews, but the appellant declined. ID at 23-25.

The administrative judge additionally found that the appellant failed to articulate

how any alleged error was harmful. ID at 25-26. We agree with the

administrative judge’s analysis on this issue.

An appellant bears the burden of proof to show harmful error by the agency

in effecting an adverse action. Canary v. U.S. Postal Service, 119 M.S.P.R. 310,

4
¶ 9 (2013). Harmful error cannot be presumed; an agency error is harmful only

when the record shows that the procedural error was likely to have caused the

agency to reach a conclusion different from the one it would have reached in the

absence or cure of the error. Id., ¶ 12. Regardless of whether it was error for the

agency to deny the appellant’s request to have his lawyer present at the

interviews, the appellant has not shown how this error was harmful. See Doe v.

U.S. Postal Service, 95 M.S.P.R. 493, ¶ 13 (2004) (finding any error in denying

the presence of the appellant’s attorney at an investigative interview was harmless

when the appellant failed to show that the agency would not have taken the same

action had his attorney been able to speak on his behalf at the interview),

overruled on other grounds by Marcell v. Department of Veterans Affairs, 2022

MSPB 33, ¶ 7. The appellant has not alleged or explained how his attorney’s

presence at these interviews would have altered the outcome of the agency’s

action.

The appellant similarly argues that the administrative judge erred in

considering his status as a bargaining unit employee in upholding the agency’s

action. PFR File, Tab 1 at 2. The appellant asserts that he was in fact not a

bargaining unit employee, and thus was ineligible to have union representation at

the investigative interviews. 2 Id. Regardless of whether the administrative judge

erroneously found that the appellant was a bargaining unit employee, the

appellant has failed to demonstrate that this error was prejudicial to his

substantive rights or in any way led to an outcome different in the absence of the

error. 

2

 The appellant attaches new evidence on review purporting to show that he was not a

bargaining unit employee. PFR File, Tab 1 at 5-8. Because we find that the appellant’s

status as a bargaining unit employee did not affect the outcome of this appeal, we find

that this new evidence is not material and thus we do not consider it. See Russo v.

Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (finding 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). 

5
The appellant additionally argues that the administrative judge erred in

denying all of the 12 witnesses he proffered to testify regarding his character or

to impeach the testimony of the agency’s witnesses. PFR File, Tab 1 at 2. The

administrative judge denied these witnesses after finding that their testimony

would not be relevant. IAF, Tab 18 at 2-4, Tab 20 at 1-2. An administrative

judge has wide discretion under the Board’s regulations to exclude witnesses

when it has not been shown that their testimony would be relevant, material, and

nonrepetitious. Franco v. U.S. Postal Service, 27 M.S.P.R. 322, 325 (1985);

see 5 C.F.R. § 1201.41(b)(8), (10). The Board will not reverse an administrative

judge’s rulings on these matters absent an abuse of discretion. Wagner v.

Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d

1236 (Fed. Cir. 1993) (Table). The Board has held that, when there is no showing

that a witness’s character testimony would have added anything to the character

information already in the record, it is not error for the administrative judge to

deny the witness. Farris v. Department of the Air Force, 20 M.S.P.R. 547, 551

n.3 (1984). Indeed, the record contains numerous declarations attesting to the

appellant’s character, including written statements from several of his proffered

witnesses. IAF, Tab 6 at 39-69, Tab 15 at 28-32. Moreover, the appellant had a

full and fair opportunity to impeach the agency’s witnesses’ testimony through

cross-examination. See Hooper v. Department of the Interior, 120 M.S.P.R. 658,

¶ 21 (2014) (finding that an administrative judge did not abuse her discretion in

excluding impeachment evidence when the parties had a full and fair opportunity

to impeach the witness’s testimony through cross-examination). Accordingly, the

appellant has failed to demonstrate that the administrative judge abused his

discretion in denying the appellant’s witnesses. 

The appellant additionally argues that he has been subject to a hostile work

environment dating back to 2004 by his direct supervisor and another individual.

PFR File, Tab 1 at 3. He also appears to argue that he was erroneously not

selected for a position despite being deemed qualified. Id. at 3-4. The appellant

6
did not raise these arguments below; thus, we find they are not new or material,

and we decline to consider them. See Clay v. Department of the Army,

123 M.S.P.R. 245, ¶ 6 (2016) (finding 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). 

NOTICE OF APPEAL RIGHTS3

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 applicable 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.

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

3

 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.

7
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 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. 

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

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

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. 420 (2017). If you have a representative in this case,

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

8
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: 

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 

9
(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.4 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). 

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. 

4

 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. 

10
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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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