UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CLIFFORD W. JONES, SR.,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

CH-0432-13-1527-B-1

DATE: December 8, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Clifford W. Jones, Sr., Cass Lake, Minnesota, pro se.

Craig Herkal, Esquire, and Jennifer M. Cassell, Esquire, Chicago, Illinois, 

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 for unacceptable performance. 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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). 

¶2 Effective May 20, 2011, the agency removed the appellant, a GS-11 

Supervisory Financial Management Specialist at the agency’s Indian Health 

Service (IHS) Cass Lake Hospital, for unacceptable performance in three critical 

elements of his position. Jones v. Department of Health & Human Services, 

MSPB Docket No. CH-0432-13-1527-I-1, Initial Appeal File (IAF), Tab 6, 

Subtab 4a. The appellant sought corrective action with the Office of Special 

Counsel (OSC) regarding the removal and subsequently filed an individual right 

of action (IRA) appeal. The administrative judge dismissed the appeal for lack of 

jurisdiction, finding that the appellant failed to nonfrivolously allege that he made 

a protected disclosure when he revealed to the Office of Inspector General and to 

OSC alleged irregularities in the agency’s hiring/attempting to hire another 

employee who, according to the appellant, should have been under his 

supervision, and in the agency’s setting up a second accounting section in an 

auxiliary building. Jones v. Department of Health & Human Services, MSPB 

Docket No. CH-1221-12-0125-W-2, Initial Decision at 2, 4-6 (Oct. 12, 2012). On 

the appellant’s petition for review of that decision, the Board agreed with the 

administrative judge’s findings and the disposition of the appeal but found that 

the appellant was entitled to review of his removal under 5 U.S.C. chapter 43, and 
3

it forwarded the matter for docketing as a removal appeal. Jones v. Department 

of Health & Human Services, MSPB Docket No. CH-1221-12-0125-W-2, Final 

Order at 7-8 (July 25, 2013). That appeal was initially dismissed without 

prejudice, pending the Board’s decision on a related compliance appeal. Jones v. 

Department of Health & Human Services, MSPB Docket No. CH-0432-13-1527-I1, Initial Decision at 2-3 (Nov. 20, 2013). The administrative judge subsequently 

dismissed the refiled removal appeal as untimely, but the Board reversed that 

finding and remanded the case to the regional office for adjudication on the 

merits of the appellant’s removal. Jones v. Department of Health & Human 

Services, MSPB Docket No. CH-0432-13-1527-I-2, Remand Order at ¶¶ 7-10

(Aug. 7, 2015).

¶3 During the remand proceeding, the appellant reiterated generally his claim 

that, in connection with his removal, the agency retaliated against him because of 

his whistleblowing activities, and he also alleged generally that the agency had 

violated his due process rights. In addition, he argued that the agency denied him 

use of its computer system after issuance of the notice of proposed removal. 

Remand File (RF), Tab 9. The appellant subsequently added claims that the 

agency discriminated against him on the bases of sex and age. RF, Tab 22. 

During adjudication, the administrative judge determined that the appellant was 

collaterally estopped from relitigating his claim of retaliation for whistleblowing 

because he previously had litigated the same issue in his earlier IRA appeal. RF, 

Tab 25.

¶4 After convening the requested hearing, RF, Tab 26, the administrative judge

issued an initial decision in which she found that the agency showed by 

substantial evidence that the Office of Personnel Management approved its 

performance appraisal system, RF, Tab 32, Remand Initial Decision (RID) at 8-9; 

that it communicated the performance standards and critical elements of the 

appellant’s position to him, RID at 9-12; that his performance standards were 

valid under 5 U.S.C. § 4302(b)(1), RID at 12; and that the agency provided the 
4

appellant with a reasonable opportunity to demonstrate acceptable performance, 

RID at 13-21. The administrative judge further found that the agency proved by 

substantial evidence that the appellant’s performance in all three critical elements 

was unacceptable—critical element #1, ensuring awareness, training, compliance, 

and discipline in supervisees, RID at 21-24; critical element #2, directing the 

overall financial objectives and policies for the finances of Cass Lake Hospital, 

RID at 24-31, and critical element #3, implementing the “M” system for 

maintaining inventory of medical and office supplies, and providing certain 

reports within specified time frames, RID at 31-34. As indicated in her earlier 

order, the administrative judge found that the appellant’s whistleblower 

retaliation claim was barred by collateral estoppel. RID at 34. The 

administrative judge found wholly unsupported the appellant’s allegation that the 

agency violated his due process rights. RID at 34-36. The administrative judge

considered as an affirmative defense of harmful procedural error the appellant’s 

claim that he was denied computer access during the time following his receipt of 

the proposal notice and prior to his removal. Weighing the appellant’s credibility 

against the record evidence on this point, the administrative judge found that the 

agency did not commit procedural error and that, in any event, the appellant

offered no evidence or argument that the outcome of the case would have been 

different if he had access to the agency’s Unified Financial Management System 

at the time in question. RID at 36-37. The administrative judge found that the 

appellant offered no evidence to support his allegations of sex or age 

discrimination, RID at 37-40. Finally, finding that the Board lacks authority to 

mitigate an agency-imposed penalty for an action taken under 5 U.S.C. 

chapter 43, the administrative judge sustained the appellant’s removal. RID 

at 40.

¶5 The appellant filed a petition for review, Remand Petition for Review (PFR) 

File, Tab 1, to which the agency has responded, RPFR File, Tab 3.
5

¶6 With one exception, the appellant does not challenge on review the 

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

that the appellant’s performance in the three cited critical elements was 

unacceptable. That exception involves the part of critical element #3 wherein the 

agency claimed that the appellant failed to implement the “M” system for 

inventory. As to this matter, the appellant’s performance improvement plan (PIP)

indicated that the system had not yet been implemented, except by other staff 

because of the appellant’s failure to implement it, and that, to improve his 

performance, he must implement the system and provide a usage report to the 

Executive Team on a quarterly basis. IAF, Tab 6, Subtab 4oo at 5. In the notice 

of proposed removal, the agency stated that the system was being implemented by 

staff from another office because the appellant did not implement it with his own 

staff or the contractor hired to get the system operating. Id., Subtab 4n. And, in 

the decision letter, the agency stated that the departure of the contractor was 

irrelevant to the PIP requirement. Id., Subtab 4b. In finding this part of critical 

element #3 sustained, the administrative judge relied upon the testimony of the 

appellant’s second-line supervisor who was also the deciding official in this case

to the effect that getting the system to function properly was critical but that the 

appellant was never able to implement it and that he also did not provide the 

appropriate quarterly reports to headquarters. RID at 32; Hearing Transcript (HT) 

at 142-44 (testimony of the deciding official). The administrative judge

considered the appellant’s claim in his pleadings2that he could not implement the 

system because he needed another employee to handle the data entry, but she 

found that, while the appellant was required to report on what the employees he 

supervised were doing, he never provided such a report. RID at 13. 

¶7 To resolve credibility issues, an administrative judge must identify the 

factual questions in dispute, summarize the evidence on each disputed question , 

 

2

The appellant elected not to testify at the hearing. HT at 162.
6

state which version he believes, and explain in detail why he found the chosen 

version more credible, considering a number of factors, as appropriate, set forth 

by the Board in its seminal case of Hillen v. Department of the Army, 35 M.S.P.R. 

453, 458 (1987) (explaining that, in assessing credibility, an administrative judge 

must consider the witness’s opportunity and capacity to observe the event or act 

in question, the witness’s character, prior inconsistent statement by the witness, a 

witness’s bias, or lack of bias, the contradiction of the witness’s version of events 

by other evidence or its consistency with other evidence, the inherent 

improbability of the witness’s version of events, and the witness’s demeanor). 

The Board must give due 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; 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). Here, having 

“observed the demeanor of the agency witnesses,” the administrative judge found 

their testimony to be credible. RID at 21. She further found that the appellant’s 

unsworn statements lacked credibility and that they were inconsistent with the 

unrebutted evidence presented by the agency. RID at 33. Other than claiming 

that his second-line supervisor committed perjury during her testimony, RPFR 

File, Tab 1 at 8, and that the other agency witnesses did as well, id. at 9, the 

appellant has failed to provide sufficiently sound reasons for overturning the 

administrative judge’s credibility determinations, which were based on her 

observations of the witnesses’ demeanor. Therefore, we find it appropriate to 

defer to them, see Haebe, 288 F.3d at 1302, and reject as unsupported the 

appellant’s challenge to the administrative judge’s finding sustained this part of 

critical element #3.

¶8 As noted, the appellant does not challenge on review the administrative 

judge’s findings sustaining the appellant’s unacceptable performance under the 

remaining part of critical element #3, critical element #1, or critical element #2. 
7

Based on our review, we otherwise discern no reason to reweigh the evidence or 

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

judge. See Haebe, 288 F.3d at 1302; Crosby v. U.S. Postal Service, 74 M.S.P.R. 

98, 105‐06 (1997) (finding no reason to disturb the findings of the administrative 

judge who considered the evidence as a whole, drew appropriate references, and 

made reasoned conclusions). We therefore find no error in the administrative 

judge’s finding that the agency proved by substantial evidence that the appellant’s 

performance was unacceptable in the three critical elements cited.

¶9 On review, the appellant argues that he was denied the ability to “identify” 

his claims of retaliation for whistleblowing and age and sex discrimination. 

RPFR File, Tab 1 at 3, 10. 

¶10 We first address the appellant’s whistleblowing claim. The administrative 

judge ruled during adjudication that the appellant’s affirmative defense of 

retaliation for whistleblowing was barred by collateral estoppel, RF, Tab 25

at 1‐2, and she incorporated that ruling in her initial decision. RID at 34. 

Collateral estoppel, or “issue preclusion,” is appropriate when: (1) an issue is 

identical to that involved in the prior action; (2) the issue was actually litigated in 

the prior action; (3) the determination on the issue in the prior action was 

necessary to the resulting judgment; and (4) the party against who issue 

preclusion is sought had a full and fair opportunity to litigate the issue in the 

prior action, either as a party or as one whose interests were otherwise fully 

represented in the that action. Kroeger v. U.S. Postal Service, 865 F.2d 235, 239 

(Fed. Cir. 1988); Encarnado v. Office of Personnel Management, 116 M.S.P.R. 

301, ¶ 13 (2011). The elements of collateral estoppel are present in this appeal. 

Whether the appellant’s claim that the agency creation of a second accounting 

section in an auxiliary building but not placing that section under his supervision 

constituted a protected disclosure as raised in his IRA appeal is identical to the 

affirmative defense that he raises in this appeal, the issue was actually litigated in 
8

the prior appeal, it was the critical issue in the jurisdictional determination that 

the Board lacked jurisdiction over Jones v. Department of Health & Human 

Services, MSPB Docket No. CH-1221-12-0125-W-2, and the appellant, the party 

precluded from relitigating the issue, had a full and fair opportunity to litigate the 

issue in the prior action. We therefore find that the appellant has not shown error 

in the administrative judge’s ruling that the appellant is barred by collateral 

estoppel from relitigating the issue of whether his disclosure regarding the 

creation of the second accounting section was protected under the Whistleblower 

Protection Act. See Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 

161, ¶ 22 (2012).

¶11 We next address the appellant’s allegations of age and sex discrimination. 

After he raised these claims below, RF, 22, the administrative judge set out the 

appropriate burdens of proof for these claims, RF, Tab 25, but the appellant 

submitted no documentary evidence in support of either claim. In his prehearing 

submission, he stated that he would call no witnesses, RF, Tab 9, although in a 

subsequent untimely submission, he requested that two agency employees be 

allowed to testify, RF, Tab 17, and he then asked that another employee be 

allowed to testify in place of one of the first two, RF, Tab 18. During the 

prehearing conference, the agency objected to the two witnesses on the ground of 

relevancy. Specifically, the agency argued that one of the witnesses was to 

testify regarding the Budget Technician position the appellant claimed he should 

have supervised, and that the other was to testify regarding the appellant’s 

allegedly being denied computer access after his removal was proposed, and the 

administrative judge granted the objections. RF, Tab 20. The appellant generally 

noted his objection to the administrative judge’s ruling. RF, Tab 22. At the 

hearing, after the agency rested, the administrative judge asked the appellant if he 

intended to testify and he replied that he would not do so. HT at 162. The 

administrative judge then noted that the agency had named the appellant as a 

witness, but when he expressed reservations about testifying under these 
9

circumstances, the administrative judge stated that she would not require him to 

do so, but that she would draw “an adverse inference on anything where there are 

credibility determinations that I need to make if you do not exercise this 

opportunity to testify.” Id. at 163. The appellant stated that he “chose not to.” 

Id. The agency noted its objection, proffering that, if required to, the appellant 

would testify, inter alia, that he had no direct information that he was removed 

because of his age or sex. Id. at 164. Notwithstanding the administrative judge’s 

repeated explanations of the significance of this matter, id. at 165-67, the 

appellant still declined to testify, id. at 167. 

¶12 In addressing the appellant’s claims of sex and age discrimination, the 

administrative judge found that he offered no evidence to support his allegations

whereas the agency presented sworn evidence that his sex and age played no role 

in the decision to remove him, HT at 155-56 (testimony of the deciding official); 

HT at 43-44 (testimony of the proposing official), and that therefore, the 

appellant had failed to establish his claims of sex and age discrimination in 

connection with his removal. RID at 38-40. We find no support for the 

appellant’s bare claim on review that he was denied the opportunity to “identify” 

his claims of sex and age discrimination. We further find that the administrative 

judge did not abuse her discretion in denying the two witnesses the appellant

requested as he has not shown that either would provide relevant, material, and 

nonrepetitious testimony. See 5 C.F.R. § 1201.41(b)(3), (8), (10); Alaniz v. U.S. 

Postal Service, 100 M.S.P.R. 105, ¶ 9 (2005). Although the administrative judge

indicated that she would draw an adverse inference from the appellant’s refusal to 

testify, it is unclear whether she actually did so. Instead, she noted that the 

appellant offered no evidence whatsoever to support his allegations, other than 

his own assertions. Even if the administrative judge’s statement could be deemed 

an adverse inference, the Board has held that it is proper for an administrative 
10

judge to draw an adverse inference under such circumstances. 3 Boal v. 

Department of the Army, 51 M.S.P.R. 134, 137 (1991). We find, therefore, that 

the appellant has failed to show that the administrative judge erred in finding not 

sustained the appellant’s allegations of sex and age discrimination. See Savage v. 

Department of the Army, 122 M.S.P.R. 612, ¶¶ 41, 37 (2015).

¶13 Finally, on review, the appellant argues, as he did below, that the agency 

denied him due process in connection with the newly created Budget Technician 

position. RPFR File, Tab 1 at 6. Despite being advised of what due process is 

required in the context of an action taken against an employee ; specifically, 

notice and an opportunity to respond, RF, Tab 21, and directed to identify the 

specific due process violation committed by the agency in its decision to remove 

him, the appellant failed to do so, RF, Tab 22. The administrative judge

considered the appellant’s several claims but found that they were not relevant to 

a due process violation claim and that, in any event, the record established that he

received written notice of the charges against him and opportunities to respond to 

all the evidence relied upon by the deciding official. RID at 34-36. Beyond his 

mere disagreement, the appellant has not set forth any specific due process 

 

3

The appellant also alleges on review that the administrative judge improperly ruled his 

proffered evidence inadmissible. RPFR File, Tab 1 at 6. The evidence he referenced in 

his prehearing submission consisted of a Cass Lake Hospital organizational chart, a 

blank position description cover sheet, instructions, generally, for how to complete such 

a cover sheet, two pages from the IHS Performance Plan Reference Guide, and two 

pages of “People Smart,” a document that appears to relate to orienting new IHS 

employees. RF, Tab 9. The agency objected to these documents on the basis of 

relevance. The administrative judge found that none of them related to the appellant’s 

performance, RF, Tab 20, and she excluded them, RF, Tab 25. At the hearing, the 

administrative judge explained that the exhibits were denied because they related to the 

Budget Technician position that was the subject of the appellant’s previous IRA appeal, 

and that such information was “irrelevant under many doctrines” and preluded by 

collateral estoppel. HT at 5. The appellant has not shown error in this ruling. To the 

extent he suggests on review that “each document identifies my duties and 

responsibilities as the First Line Supervisor or the Age, Gender, and Compensation of 

the Budget Technician . . . .” RPFR File, Tab 1 at 6, our review of the documents does 

not support the appellant’s claim. 
11

violation or otherwise shown error in the administrative judge’s finding that he 

failed to establish his claim. See Pollak v. Department of the Treasury, 

99 M.S.P.R. 187, ¶ 9 (2005).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS4

You have the right to request further review of this final decision. There 

are several options for further review set forth in the paragraphs below. You may 

choose only one of these options, and once you elect to pursue one of the avenues 

of review set forth below, you may be precluded from pursuing any other avenue 

of review.

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 U.S. 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:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

 

4

The remand initial decision properly afforded the appellant notice of mixed case 

appeal rights but did not afford him notice of appeal rights under the Whistleblower 

Protection Enhancement Act of 2012. We have appropriately provided notice of both 

types of appeal rights herein.
12

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 U.S. 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 h ave 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. 42 U.S.C. § 2000e-5(f) and 

29 U.S.C. § 794a.

Other Claims: Judicial Review

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

claims of prohibited personnel practices described in 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 the U.S. Court of Appeals for the Federal Circuit or any court of 

appeals of competent jurisdiction to review this final decision. The court of 

appeals must receive your petition for review within 60 days after the date of this 
13

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.

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 U.S. 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 U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode/htm. 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, and 11. Additional information about other 

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. 

If you are interested in securing pro bono representation for your 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 

Merit Systems Protection Board 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.

______________________________

Jennifer Everling

Acting Clerk of the Board