UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHAMARCUS STOCKTON,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DA-0752-13-1025-I-3

DATE: October 9, 2015

THIS ORDER IS NONPRECEDENTIAL1

Michael D.J. Eisenberg, Esquire, Washington, D.C., for the appellant.

Craig Paulson, Esquire, Texarkana, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

sustained his removal. For the reasons discussed below, we GRANT the 

appellant’s petition for review, VACATE the initial decision, and REMAND the 

case to the regional office for further adjudication in accordance with this Order. 

Specifically, we find that the administrative judge failed to address the 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

appellant’s affirmative defense of retaliation for prior equal employment 

opportunity (EEO) activity. We therefore remand the appeal for adjudication of 

that affirmative defense and a new assessment of the agency’s penalty 

determination, if necessary.

BACKGROUND

¶2 The appellant was employed as an Information Technology Specialist 

(Network/Infosec). Stockton v. Department of the Army, MSPB Docket No. DA0752-13-1025-I-1, Initial Appeal File (I-1 IAF), Tab 3 at 8. The agency proposed 

his removal based upon charges of: (1) providing the agency with an altered 

email to support his assertion that he applied, but failed to receive consideration,

for a positon at the agency; and (2) lack of candor when he said that a computer 

glitch was the source of the altered email. Id. at 55. The appellant replied both 

orally and in writing to the proposal. Id. at 15-28. The agency sustained the 

charges and removed the appellant from Federal service. Id. at 9-11.

¶3 The appellant alleged that he applied for a noncompetitive promotion but 

that the agency denied that he applied for the position. See id. at 101. The 

appellant stated that he inquired as to whether his name was included on the 

referral list for the promotion and, upon hearing that the agency could not locate 

his application, he submitted both what he claimed was an acknowledgment letter

indicating that he had applied for the position as well as a screen shot indicating 

that the status for his application to the position was unavailable. See id. at 84, 

101; Stockton v. Department of the Army, MSPB Docket No. DA-0752-13-1025-

I-3, Initial Appeal File (I-3 IAF), Tab 5 at 19-20. The appellant also filed an 

EEO complaint in which he asserted that he was not selected for the promotion 

because of discrimination based upon his race and age. 2

 I-3 IAF, Tab 5 at 33-37. 

The agency ordered an inquiry to determine whether the appellant submitted 

altered or falsified documents in an attempt to obtain eligibility for consideration 

 2 The appellant subsequently withdrew his EEO complaint. I-3 IAF, Tab 5 at 26.
3

for the promotion. I-1 IAF, Tab 3 at 57-61. The appellant told the inquiry officer

and another agency employee that he failed to receive consideration for the 

promotion because of a computer glitch. Id. at 58; I-3 IAF, Tab 5 at 65. After 

conducting the inquiry, the inquiry officer concluded that preponderant evidence 

established that the appellant submitted an altered acknowledgment letter in an 

attempt to obtain eligibility for consideration for the promotion and that the 

appellant’s assertion that a computer glitch had affected only his application 

submission and acknowledgment letter was not credible. I-1 IAF, Tab 3 at 60. 

The appellant’s removal followed. Id. at 9-11.

¶4 The appellant challenged the removal before the Board, asserting, inter alia,

that: (1) the agency should not have sustained the charges; (2) the agency failed 

to prove a sufficient nexus between the alleged misconduct and his employment; 

(3) the penalty was too severe and unreasonable given the mitigating 

circumstances in the case; and (4) the agency committed a prohibited personnel 

practice under 5 U.S.C. § 2302(b)(1) when it proposed his removal and issued a 

removal decision in retaliation for his involvement in protected activity. I-1 IAF, 

Tab 1. He requested a hearing. Id. 

¶5 After holding the requested hearing, the administrative judge found that 

(1) the appellant provided an altered email to support his assertion that he applied 

for, but failed to receive consideration for, a promotion; (2) the appellant lacked 

candor when he stated that a computer glitch was the source of the altered email; 

(3) disciplinary action for the cited misconduct promoted the efficiency of the 

service; and (4) the penalty of removal was within the tolerable bounds of 

reasonableness. I-3 IAF, Tab 30, Initial Decision (ID) at 2-9. The appellant has 

timely petitioned for review. Petition for Review (PFR) File, Tab 1. He asserts, 

inter alia, that the administrative judge improperly sustained the lack of candor 

charge because the agency failed to prove the element of deception necessary for 

the charge. Id. at 5-7. He also asserts that the agency failed to prove that he had 

knowledge that the document he submitted was altered. Id. at 7. In further 
4

support of his assertion that the administrative judge erred in sustaining the 

charges, the appellant challenges the thoroughness and competence of the 

agency’s investigation. Id. at 6-7, 14. The appellant additionally asserts that the 

administrative judge failed to address his affirmative defense of EEO retaliation. 

Id. at 8-9. Finally, the appellant challenges the penalty determination. 3

 

Id. at 9-15. The agency has responded in opposition to the petition for review. 

PFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly sustained the charge that the appellant 

provided an altered email to support his assertion that he applied for a promotion.

¶6 As noted above, the administrative judge found that the agency had shown 

by preponderant evidence that the appellant submitted an altered email under the 

guise of an authentic email in support of his contention that he had applied for a 

promotion. ID at 5. On review, the appellant argues that the agency failed to 

prove that he had knowledge that the document he submitted was altered. PFR 

File, Tab 1 at 7. For the reasons discussed below, we agree with the 

administrative judge that the agency proved the charge.

¶7 We find that the agency’s charge of providing an altered email is essentially 

a charge of falsification. To establish a charge of falsification, the agency must 

prove by preponderant evidence that the appellant: (1) supplied wrong 

information; and (2) knowingly did so with the intention of (a) defrauding, 

deceiving, or misleading the agency, and (b) defrauding the agency for his own 

 3 The appellant asserts that the agency failed to conduct a nationwide search for 

comparators. PFR File, Tab 1 at 12-13. We find that this bare assertion is insufficient 

to state a claim of disparate penalties. See Lewis v. Department of Veterans Affairs, 

111 M.S.P.R. 388, ¶ 8 (2009) (holding that an agency’s obligation to justify different 

treatment is triggered where an employee has raised an allegation of disparate penalties 

in comparison to specified employees).
5

personal gain. 4 Parker v. Department of Veterans Affairs, 122 M.S.P.R. 353, ¶ 10 

(2015) (citing Haebe v. Department of Justice, 288 F.3d 1288, 1305 (Fed. Cir. 

2002)).

¶8 In sustaining the charge, the administrative judge relied, in part, on the

testimony of agency witnesses, which he determined was more credible than the 

testimony of the appellant’s witnesses. ID at 5. Specifically, the administrative 

judge credited the testimony of the Chief of Skills Development, who participated 

in the inquiry that led to the appellant’s removal, that the appellant provided the 

agency with an acknowledgement letter to support consideration for a promotion

and that, based upon review by the Office of Personnel Management (OPM) and 

the agency, this letter was determined to have been altered. ID at 2-3, 5. The 

administrative judge found that this testimony was credible because the Chief of 

Skills Development testified in a direct and straightforward manner, was sure of 

his facts, appeared truthful in his responses, and testified consistently on direct 

and cross-examination. ID at 5. The administrative judge further credited the 

testimony of an OPM Human Resources (HR) Specialist that the email that the 

appellant submitted was not generated by OPM. ID at 4. The administrative 

judge also found the OPM HR Specialist’s testimony to be persuasive because she 

made an effort to understand questions, the testimony was consistent and direct,

and she explained in detail why she believed the email had been altered. ID at 6. 

Similarly, the administrative judge found that an OPM supervisor persuasively 

testified in a consistent, direct, and straightforward manner that a search of the 

agency’s records during the relevant time period reflected that the appellant never 

completed an application for the position in question. ID at 4, 6. 

¶9 The administrative judge considered the testimony of the appellant’s 

witnesses in support of his assertion that he had applied for the position and that 

 4 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. § 1201.4(q).
6

the email was authentic, but found that this testimony did not support the 

appellant’s assertion. ID at 5-6. Specifically, the administrative judge found 

that, although a former agency employee, D.C., had signed a statement that she

personally had confirmed receipt of the appellant’s application for the position, 

D.C. testified at the hearing that another employee had actually obtained this 

information for her. ID at 6. The administrative judge noted S.M., the other 

employee identified by D.C., did not recall obtaining that information or D.C. 

asking her to do so. Id. The administrative judge also noted that the supervisory 

HR Specialist who supervised both D.C. and S.M. testified that neither she nor 

any of her staff could access applications in the Southwest Region, where the 

position in question was located. Id. The administrative judge found that this 

testimony was credible because it was direct and straightforward. Id. He

therefore gave this testimony greater weight than that of D.C. Id.

¶10 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. See Broughton v. Department of 

Health & Human Services, 33 M.S.P.R. 357, 359 (1987). More specifically, when 

a hearing was held, the Board will defer to the credibility determinations of an 

administrative judge when they are based, explicitly or implicitly, upon the 

observation of the demeanor of witnesses testifying at a hearing, because the 

administrative judge is in the best position to observe the demeanor of the 

witnesses and determine which witnesses were testifying credibly. Haebe, 288 

F.3d at 1300-01. Here, we defer to the administrative judge’s credibility 

determinations because they are explicitly based on the demeanor of the witnesses 

at the hearing.

¶11 Because he found that the agency’s witnesses were more persuasive, the 

administrative judge concluded that preponderant evidence supported the 

agency’s charge that the appellant provided an altered email to support his 
7

assertion that he applied, but failed to receive consideration, for the position. ID 

at 6. We agree that preponderant evidence supports the charge. 

¶12 The appellant argues that the agency failed to prove that he knew the 

document he submitted was altered. PFR File, Tab 1 at 7. The intent to defraud 

may be established by circumstantial evidence. Parker, 122 M.S.P.R. 353, ¶ 10. 

Therefore, the Board may consider plausible explanations for why an appellant

provided incorrect information. Scheffler v. Department of Army, 117 M.S.P.R. 

499, ¶ 4 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). Likewise, the absence 

of a credible explanation for the incorrect information can constitute 

circumstantial evidence of intent to deceive. Id.

¶13 Here, the administrative judge found, and we agree, that the appellant

provided no evidence or explanation to support his contention that he did not 

know that the document he submitted was altered. See ID at 6. Our review of the 

discrepancies between the acknowledgment letter submitted by the appellant and 

the acknowledgment letter received by other applicants for the same position 

further supports our finding. See I-3 IAF, Tab 28 at 23-24, 32-33. The altered 

document is similar to an acknowledgment letter that the appellant received on 

Friday, September 28, 2012, for another position. See id. at 18-19. In addition, 

although both acknowledgment letters state they were sent on a Friday, the 

document the appellant submitted states that it was sent on September 29, 2012—

a day after the other acknowledgment letter. Id. at 18-19, 32. Although the 

appellant could have submitted an original dated email of the acknowledgment

letter that he alleged to have received, which would have supported his assertion 

that he did not falsify it, he instead submitted copies of the acknowledgment 

letter in the context of a reply and forwarded email. See, e.g., id. at 32-33. Thus, 

we find that the evidence does not support the appellant’s assertion that he did 

not have knowledge that the email he sent was altered. We find that the elements 

of falsification are met here because the administrative judge found, and we 

agree, that the appellant knowingly supplied wrong information in the form of the 
8

altered document with the intent to defraud the agency for his own personal gain 

in the form of obtaining consideration for the promotion. 5

 See 

Parker, 122 M.S.P.R. 353, ¶¶ 10, 16. We therefore find that the administrative 

judge properly sustained the first charge. See Scheffler, 117 M.S.P.R. 499, ¶¶ 7-8 

(determining that the appellant’s false statements were knowing and intentional 

rather than the result of an honest mistake, despite his claim that he could have 

honestly but erroneously relied on an altered document).

The administrative judge properly sustained the lack of candor charge.

¶14 As noted above, the administrative judge concluded that the agency showed 

by preponderant evidence that the appellant lacked candor when he claimed that 

the altered email was the result of a computer glitch. ID at 7-8. The appellant 

asserts that the administrative judge improperly sustained the lack of candor 

charge. PFR File, Tab 1 at 5-7 (citing Ludlum v. Department of Justice, 278 F.3d 

1280, 1284 (Fed. Cir. 2002)). For the reasons discussed below, we agree with the 

administrative judge that the agency also has proved the lack of candor charge.

¶15 While falsification involves an affirmative misrepresentation, lack of 

candor is a broader and more flexible concept. Ludlum, 278 F.3d at 1284. Its 

contours and elements depend upon the particular context and conduct involved. 

Id. When an underlying misconduct charge has been proven, a lack of candor 

charge also must be sustained on the basis of the appellant’s failure to respond 

truthfully or completely when questioned about matters relating to the proven 

misconduct. Id. (quoting Gootee v. Veterans Administration, 36 M.S.P.R. 526, 

529 (1988)).

¶16 The administrative judge credited the affidavit of a former agency employee 

and the testimony of the inquiry officer that the appellant stated that a computer 

 5 The administrative judge did not specify whether he considered the charge under a 

falsification standard or a lack of candor standard. See ID at 2-6. However, because we 

sustain the charge based upon the higher standard of falsification, any confusion in this 

respect is harmless.
9

glitch caused the discrepancy between his acknowledgment letter and that of 

other applicants. ID at 7; see I-3 IAF, Tab 5 at 65. The administrative judge 

found that the appellant did not dispute making these statements. ID at 7. He 

further found that the appellant’s claim that the discrepancy was caused by a 

computer glitch was undermined by the credible testimony of agency witnesses 

and the fact that there was no evidence that the appellant even completed an 

application for the position in question. Id. We see no reason to disturb these 

findings.

6

¶17 The appellant, however, asserts that the administrative judge improperly 

sustained the lack of candor charge because the agency failed to prove the 

element of deception necessary for this charge. PFR File, Tab 1 at 5-7 (citing 

Ludlum, 278, F.3d at 1284). We disagree. In Ludlum, the U.S. Court of Appeals 

for the Federal Circuit stated, “Although lack of candor necessarily involves an 

element of deception, ‘intent to deceive’ is not a separate element of that 

offense—as it is for ‘falsification.’” Id. at 1284-85. We agree with the 

administrative judge that the appellant knew the discrepancies in his 

acknowledgment letter were not caused by a computer glitch, but nevertheless 

stated that the glitch had caused the discrepancies. See ID at 5-7. Therefore, the 

appellant’s statements concerning the computer glitch contained an element of 

deception. See Rhee v. Department of the Treasury, 117 M.S.P.R. 640, ¶ 10 

(2012) (finding that Ludlum requires the agency to produce some evidence that 

the appellant’s actions, under the circumstances, involved an element of 

deception), overruled on other grounds by Savage v. Department of the 

Army, 122 M.S.P.R. 612 (2015). Additionally, as previously discussed, in cases 

 6 The administrative judge found that the record also supported the conclusion that the 

appellant knowingly supplied incorrect information with the intention of deceiving the 

agency. ID at 7-8 (citing Prather v. Department of Justice, 117 M.S.P.R. 137, ¶ 17 

(2011)). Because we find that the agency proved the charge of lack of candor, we need 

not address this finding to the extent that it was intended as an additional finding of 

falsification.
10

such as this one, where an underlying misconduct charge has been proven, a lack 

of candor charge also must be sustained based on the appellant’s failure to 

respond truthfully when questioned about matters relating to the proven 

misconduct. Ludlum, 278 F.3d at 1284. Accordingly, we find that the 

administrative judge properly sustained the lack of candor charge. 7

 See Little v. 

Department of Transportation, 112 M.S.P.R. 224, ¶ 20 (2009) (finding that the 

agency proved the appellant’s lack of candor during an investigation where the 

Board sustained the charge for the misconduct that was the subject of the 

investigation).

The agency established nexus.

¶18 The administrative judge found that the agency’s disciplinary action 

promoted the efficiency of the service. ID at 8. The appellant has not challenged 

this finding on review, and we see no reason to disturb it because removal for 

falsification of documents has consistently been found to be for such cause as will 

promote the efficiency of the service. See, e.g., Trybul v. Department of the 

Army, 22 M.S.P.R. 290, 292 (1984), aff’d, 776 F.2d 1059 (Fed. Cir. 1985) 

(Table).

It is necessary to remand the appeal for further adjudication of the appellant’s 

EEO retaliation claim.

¶19 When an appellant raises an affirmative defense in an appeal either by

checking the appropriate box in an appeal form, identifying an affirmative 

defense by name, or by alleging facts that reasonably raise such an affirmative 

defense, the administrative judge must address the affirmative defense in any 

close of record order or prehearing conference summary and order. Gath v. U.S. 

 7 The appellant challenges the agency’s investigation of the charges. PFR File, Tab 1 

at 6-7, 14. The Board has held that an agency does not have a duty to investigate the 

appellant’s misconduct before proposing his removal, but only to make reasonable 

inquiries into exonerating facts brought to its attention by an appellant before removing 

him. Uske v. U.S. Postal Service, 60 M.S.P.R. 544, 550 (1994), aff’d, 56 F.3d 1375

(Fed. Cir. 1995). Therefore, the thoroughness or lack of thoroughness of the agency’s 

investigation is not a proper basis for not sustaining the agency’s charges. Id. 
11

Postal Service, 118 M.S.P.R. 124, ¶ 11 (2012). Even if an appellant expresses the 

intention to withdraw such an affirmative defense, the administrative judge must, 

at a minimum, in the close of record order or prehearing conference summary and 

order, identify the affirmative defense, explain that the Board will no longer 

consider it when deciding the appeal, and give the appellant an opportunity to 

object to the withdrawal of the affirmative defense. Id.

¶20 Here, the appellant asserted in his initial appeal that the agency committed a 

prohibited personnel practice under 5 U.S.C. § 2302(b)(1) when it proposed his

removal and issued a removal decision in retaliation for his involvement in 

protected activity. I-1 IAF, Tab 1. The appellant was not informed of his burden 

for establishing the affirmative defense. The administrative judge issued a 

prehearing conference summary, in which he stated that the appellant was not 

asserting any affirmative defenses, but it did not state that the appellant had 

abandoned his affirmative defense of EEO retaliation. I-3 IAF, Tab 19 at 1. 

Although he was given an opportunity to respond to the summary, id. at 3, the 

appellant, who was represented by counsel, failed to do so. The initial decision

did not address his affirmative defense. See ID. On petition for review, the 

appellant now asserts that the administrative judge failed to adjudicate his claim 

of EEO retaliation. PFR File, Tab 1 at 8-9. Accordingly, we find that the 

administrative judge did not give the appellant proper notice regarding his 

affirmative defense and it thus is necessary to remand the appeal for further 

adjudication of the affirmative defense. See Gath, 118 M.S.P.R. 124, ¶ 12.

¶21 Because an adverse action is sustainable only if the appellant cannot 

establish his affirmative defenses, we vacate the administrative judge’s initial 

decision sustaining his removal and remand the appeal for further development of 

the record on the appellant’s affirmative defense of EEO retaliation. See, e.g., 

Viana v. Department of the Treasury, 114 M.S.P.R. 659, ¶ 8 (2010). If, after 

remand, the administrative judge denies the appellant’s affirmative defense, he
12

may readopt the previous findings concerning the agency’s charges and the 

reasonableness of the penalty. Id.

ORDER

¶22 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board