UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ERIC ROSE,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

AT-0752-12-0063-B-1

DATE: September 17, 2014

THIS ORDER IS NONPRECEDENTIAL1

Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.

Stacey Turner Stokes, Esquire, Fort Lee, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

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

which sustained his removal for absence without leave (AWOL). For the reasons 

discussed below, we GRANT the appellant’s petition for review and REMAND 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

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

Order. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant was a WG-04 Store Worker for the Defense Commissary 

Agency, a component of the Department of Defense. Initial Appeal File (IAF), 

Tab 6, Subtab 4A. The appellant’s duty station was the Gulfport Naval 

Construction Battalion Center (NCBC), a Department of the Navy (Navy)

installation of which the Defense Commissary Agency is a tenant. Id. On 

June 10, 2011, Naval Military Police issued the appellant criminal tickets for 

carrying a concealed weapon (a fixed blade knife) and making a disturbance in a 

public place. Remand Appeal File (RAF), Tab 11 at 97, 108-09. Effective the 

same day, the Navy barred the appellant from entering the NCBC under threat of 

fine and imprisonment. IAF, Tab 6, Subtab 4J. The reasons for the barment were 

(1) carrying a concealed weapon, and (2) threats of violence against persons 

inside the commissary. Id. 

¶3 Because he was unable to enter the NCBC, the appellant was unable to 

report for duty. The agency began carrying him in AWOL status. IAF, Tab 6, 

Subtab 4L. The appellant filed a constructive suspension appeal, Rose v. 

Department of Defense, MSPB Docket No. AT-0752-11-0814-I-1, IAF, Tab 1, 

and the administrative judge reversed the action, finding that the agency had 

constructively suspended the appellant, id., Tab 18.

¶4 During the pendency of that appeal, on October 21, 2011, the agency 

removed the appellant based on two charges: (1) “Absence from Duty Occasioned 

by your being Barred from entering the Gulfport Naval Construction Battalion 

Center,” and (2) “Absent without Leave.” IAF, Tab 6, Subtabs 4A, 4D, 4H. The 

appellant filed the instant appeal, IAF, Tab 1, and the administrative judge 

reversed the removal, IAF, Tab 10, Initial Decision (ID) at 2, 7. He merged the 

charges and found, based on the same reasoning that he employed in the 
3

constructive suspension appeal, that the agency failed to show that it properly 

carried the appellant in AWOL status during the charged dates. ID at 2, 4-7. The 

agency filed petitions for review in both cases.

¶5 The Board reversed the initial decision in the constructive suspension 

appeal and dismissed it for lack of jurisdiction. Rose v. Department of Defense, 

118 M.S.P.R. 302 (2012). It found that the appellant did not meet the standard 

established in Hollingsworth v. Defense Commissary Agency, 82 M.S.P.R. 444

(1999), for determining whether an employee being barred by one governmental 

entity from being able to report for duty to another governmental entity has been 

constructively suspended. Rose, 118 M.S.P.R. 302, ¶¶ 4, 10-14. In the instant 

removal appeal, the Board vacated the initial decision and remanded for further 

adjudication. IAF, Tab 12, Remand Order at 2, 5. The Board found that the 

initial decision could not stand to the extent that it was based on the same faulty 

analysis that the administrative judge employed in the constructive suspension 

appeal. Remand Order at 4. However, the Board found that it could not issue a 

final decision on review because the appellant had withdrawn his affirmative 

defense of retaliation for protected activity and waived his right to a hearing 

conditioned on a finding reversing the removal action. Remand Order at 4-5. It 

therefore remanded the appeal to give the appellant an opportunity to request a 

hearing and pursue his affirmative defense. Remand Order at 5.

¶6 On remand, the appeal was assigned to a different administrative judge, 

who conducted a hearing and sustained the removal. RAF, Tab 29, Remand 

Initial Decision (RID) at 2, 9. He found that the agency proved its charge of 

AWOL, the appellant received due process, the appellant did not prove his 

retaliation defense, and the action promoted the efficiency of the service. RID at 

2-9. The appellant has filed a petition for review, Remand Petition for Review 

(RPFR) File, Tab 1, and the agency has filed a response, RPFR File, Tab 3. 
4

The agency established a nexus between the charge and the efficiency of the 

service.

¶7 On review, the appellant argues that it does not promote the efficiency of 

the service to remove an employee who has done nothing wrong. RPFR File, Tab 

1 at 13-16. He does not dispute that he was AWOL, but he argues that the 

barment underlying his AWOL was faulty. Id. 

¶8 The details of the events leading up to the appellant’s arrest and barment 

are as follows. On June 7, 2011, the appellant complained to a coworker that his 

immediate supervisor intended to “write him up” for arriving at work early and 

working through lunch. He told the coworker that if the agency management did 

not handle it appropriately, he would take matters into his own hands and “heads 

are going to roll.” Hearing Transcript (HT) at 244-45 (testimony of the 

appellant). Two days later, on June 9, 2011, the coworker met in person with the 

Store Director, the appellant’s third-line supervisor, and registered several 

complaints about the appellant, including that the appellant had made this “heads 

are going to roll” comment. Id. at 97-101 (testimony of the Store Director). The 

coworker stated that he was concerned by this “threat” because the appellant 

owned a gun. 2

 Id. at 99 (testimony of the Store Director). The Store Director 

relayed this information by email to the Zone Manager, the appellant’s 

fourth-level supervisor. RAF, Tab 11 at 32. However, the Store Director 

recharacterized the appellant’s “heads are going to roll” comment as follows:

The supposed comments were that [the appellant] was getting fed up 

with this place, that management head’s [sic] were going to roll, and 

if [the agency] did not fix it he has a gun and can take care of it 

himself.

 2 There appears to be some dispute about whether the appellant had ready access to a 

firearm at this time. HT at 245-46, 293-95 (testimony of the appellant). It is 

undisputed, however, that the appellant never mentioned any firearm in connection with 

his “heads are going to roll” comment; this was merely additional information 

volunteered to the Store Director by the appellant’s coworker. Id. at 99 (testimony of 

the Store Director), 245, 281 (testimony of the appellant); RAF, Tab 11 at 101.
5

Id. The following day, June 10, 2011, the Zone Manager telephoned the Store 

Director and told him to report the matter to base security. HT at 115 (testimony 

of the Store Director). The Store Director did so, and gave base security 

substantially the same account that he had given the Zone Manager. Id. at 115-16 

(testimony of the Store Director).

¶9 Later that morning, while the appellant was working behind the store, he 

was approached by several police officers with weapons drawn. They asked him 

whether he had any concealed weapons. HT at 250 (testimony of the appellant). 

The appellant indicated that he had two knives—one clipped to the outside of his 

pants pocket, and one on a lanyard around his neck. Id. The officers also took a 

statement from the appellant’s coworker who made the original complaint about 

the appellant’s alleged threat. RAF, Tab 11 at 101. The officers then issued the 

appellant two tickets—one for carrying a concealed deadly weapon and one for 

causing a disturbance in a public place. Id. at 108-09. That afternoon, the police 

officers compiled information about the incident and presented it to the acting 

commander of the Gulfport NCBC. HT at 195-96 (testimony of the acting base 

commander). RAF, Tab 11 at 97. The acting commander reviewed the 

information and issued an order barring the appellant from entering Gulfport 

NCBC upon threat of fine and imprisonment. HT at 196 (testimony of the acting 

base commander); IAF, Tab 6, Subtab 4J. The appellant then was escorted off 

base. RAF, Tab 11 at 97.

¶10 Eventually, on October 18, 2011, the Assistant United States Attorney 

decided not to prosecute the appellant and instead moved to dismiss the charges. 

IAF, Tab 8, Subtab 6. The appellant’s attorney forwarded this information to the 

Gulfport NCBC commanding officer. Id. The same acting commander who 

issued the initial barment order considered the information but found it 

insufficient to prove that the charges underlying the barment were, in fact, 

dismissed. He therefore declined to modify or rescind the order. HT at 201-09 

(testimony of the acting base commander). On October 21, 2011, before the 
6

appellant’s attorney could get a copy of the court order dismissing the charges, 

the agency removed the appellant. 3

 IAF, Tab 6, Subtabs 4A, 4D.

¶11 The record shows that, during the barment period, the commanding officer 

asked the Store Director whether he had any comments regarding the barment. 

HT at 119 (testimony of the Store Director). The Store Director declined to 

comment, informing the commanding officer that he did not want to influence his 

decision. Id. However, when the commanding officer asked the Store Director

whether any store employees were in fear of the appellant, the Store Director 

replied in the affirmative. Id. The record also shows that the appellant needed a 

knife for opening hundreds of boxes every day—a major part of his job. HT at 

253-54 (testimony of the appellant). The record further shows that the 

commissary at which the appellant worked offers similar knives for sale. Id. at 

256-57 (testimony of the appellant); RAF, Tab 18 at 60.

¶12 The appellant has presented a substantial case that the barment order 

underlying the AWOL charge was problematic. The appellant never threatened 

anyone. He merely stated that “heads are going to roll.” Although this statement 

might be indelicate, we find that it is a hyperbolic idiom that no reasonable 

person would construe as an actual threat. See Metz v. Department of the 

Treasury, 780 F.2d 1001, 1002-03 (Fed. Cir. 1986) (to determine whether words 

constituted a threat, the Board must use “the connotation which a reasonable 

person would give to the words”) (quoting Meehan v. U.S. Postal Service, 

718 F.2d 1069, 1075 (Fed. Cir. 1983)). Nor did the appellant mention a gun in 

connection with his statement. The Store Director added this embellishment in 

his report to base security. When the appellant was eventually barred, it was on 

the basis that he engaged in this hyperbole and was carrying a tool that he used 

for his job and that was available for purchase at Gulfport NCBC. Finally, the 

criminal charges against the appellant were dismissed but not in time to offer 

 3 The record indicates that it would have taken “a few weeks” to obtain a copy of the 

court’s order. IAF, Tab 8, Subtab 6 at 6.
7

sufficient proof of the matter to the Navy, so that the barment might be modified 

or lifted.

¶13 Nevertheless, the appellant was not removed for the conduct underlying the 

barment. He was removed for AWOL arising out of the barment. IAF, Tab 6, 

Subtabs 4A, 4D, 4H. We agree with the administrative judge that an order 

barring an individual from a military installation is committed to the sound 

discretion of the military base commander, and that the Board lacks the authority 

to review such an order. RID at 8; see Department of Navy v. Egan, 484 U.S. 

518, 529-330 (1988) (unless Congress specifically has provided otherwise, courts 

traditionally have been reluctant to intrude upon the authority of the executive in 

military and national security affairs); United States v. Albertini, 472 U.S. 675, 

690 (1985) (a commanding officer has broad authority to issue a barment letter, 

as long as the letter is not patently arbitrary or discriminatory); Cafeteria and 

Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 

893-96 (1961) (commanding officers traditionally have exercised unfettered 

discretion in excluding civilians from their area of control). The Board implicitly 

recognized this in Hollingsworth, 82 M.S.P.R. 444, ¶ 7, when it found that an 

analysis of a constructive suspension based on such a barment must focus on the 

actions and obligations of the employing agency—not on the actions of the 

military department or the propriety of the barment itself.

¶14 To show that an adverse action is taken for the efficiency of the service, an 

agency must establish a nexus between the proven charge and the efficiency of 

the service. Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 18 

(2013). It is well-established that a proven charge of AWOL satisfies that 

requirement. Bryant v. National Science Foundation, 105 F.3d 1414, 1417 (Fed.

Cir. 1997) (the nexus between the charged offense and the efficiency of the 

service is automatic when the charged offense is AWOL). The agency was not 

required to establish a nexus between the efficiency of the service and the 

conduct giving rise to the barment but which was not part of the charge.
8

The administrative judge correctly applied Hollingsworth to the facts of this case.

¶15 The appellant argues that the administrative judge should not have used the 

four-part test set forth in Hollingsworth, 82 M.S.P.R. 444, for analyzing whether 

the agency initiated his absence and in any event, the administrative judge applied 

Hollingsworth incorrectly. RPFR File, Tab 1 at 24-27.

¶16 As to the applicability of Hollingsworth to the instant appeal, we agree with 

the appellant that the Board’s jurisdiction is not in question and that 

Hollingsworth is not on point to the extent that it pertains to the Board’s 

jurisdiction over a constructive suspension appeal. RPFR File, Tab 1 at 24-25. 

However, Hollingsworth is instructive on the issue of whether the agency 

properly carried the appellant in an AWOL status. 82 M.S.P.R. 444, ¶ 7; see 

Boscoe v. Department of Agriculture, 54 M.S.P.R. 315, 325 (1992) (to prove an 

AWOL charge, an agency must show that the employee was absent from duty, and 

either that his absence was not authorized or that his request for leave was 

properly denied). In any event, the appellant has not advanced an alternative 

analytical framework, and he also has conceded the AWOL charge. RPFR File, 

Tab 1 at 14; RAF, Tab 24 at 4. 

¶17 As to the analysis of the Hollingsworth factors, we disagree with the 

appellant that the Board’s penalty jurisprudence amounts to an “agency policy, 

rule, regulation, contractual provision, or other authority to offer assistance to the 

employee with the circumstances beyond his control,” thus meeting the third part 

of the test. 82 M.S.P.R. 444, ¶ 7; RPFR File, Tab 1 at 24-25. If the Board’s 

penalty jurisprudence, which applies equally to all respondent agencies, were 

sufficient to satisfy this factor, then this factor would be satisfied in every case, 

and there would have been no need for the Board to list it as an element of a 

constructive suspension under these circumstances. Moreover, the Board already 

decided in the appellant’s related constructive suspension appeal, Rose, 

118 M.S.P.R. 302, ¶¶ 9-13, that he did not satisfy the Hollingsworth factors, and 

we find that the appellant is collaterally estopped from relitigating the issue in the 
9

instant appeal. See Killeen v. Office of Personnel Management, 558 F.3d 1318, 

1323 (Fed. Cir. 2009) (collateral estoppel bars litigation of an issue if the 

identical issue was actually litigated and necessarily decided in a prior case where 

the interests of the party to be precluded were fully represented). In any event, as 

noted above, supra ¶ 16, the appellant has conceded the AWOL charge.

The appellant did not prove his affirmative defense of retaliation for protected 

activity.

¶18 The appellant challenges the administrative judge’s analysis of his 

affirmative defense of retaliation for protected activity under 5 U.S.C. 

§ 2302(b)(9). RPFR File, Tab 1 at 27-30; RID at 6-7. As relevant here, that 

section prohibits any employee who has the authority to take, direct others to 

take, recommend, or approve any personnel action, to take any personnel action 

against any employee because of the exercise of any appeal, complaint, or 

grievance right granted by any law, rule, or regulation. 5 U.S.C. § 2302(b)(9)(A). 

Because the record on this issue is complete, we proceed to the ultimate question 

of whether the appellant has met his overall burden of proving illegal retaliation. 

See Marshall v. Department of Veterans Affairs, 111 M.S.P.R. 5, ¶ 16 (2008).

¶19 The appellant filed a host of complaints over the years, including 

complaints to the Office of Special Counsel, RAF, Tab 18, 254-65, the 

Occupational Safety & Health Administration, id. at 278-81, the Inspector 

General, id. at 285-86, and the Defense Commissary Agency Hotline, id. at

289-90, as well as equal employment opportunity (EEO) complaints, id. at 

97-100, 242. Without deciding whether all of these activities are covered under 

5 U.S.C. § 2302(b)(9)(A), we find that at least some of them are—in particular, 

the EEO complaints. See Smith v. Department of Agriculture, 64 M.S.P.R. 46, 

62-63 (1994) (filing an EEO complaint is protected activity under 5 U.S.C. 

§ 2302(b)(9)). In addition, the proposing official, the deciding official, and the 

Store Director were all aware of at least some of the appellant’s complaints. 

RPFR File, Tab 1 at 28; RAF, Tab 18 at 97-100, 242; HT at 38 (testimony of the 
10

proposing official), 72-76 (testimony of the deciding official), 96 (testimony of 

the Store Director).

¶20 For the following reasons, however, we agree with the administrative judge

that the appellant has not established a nexus between his protected activity and 

his removal, the personnel action at issue in this appeal. RID at 7. In deciding 

this issue, the Board will weigh the seriousness of the proven charge against the 

relevant officials’ motive to retaliate. Crawford-Graham v. Department of 

Veterans Affairs, 99 M.S.P.R. 389, ¶ 26 (2005). In this regard, we find that 

agency management in general had a motive to retaliate against the appellant. 

The appellant had a reputation for filing complaints, and managers sometimes 

discussed this fact among themselves, at least in the context of trying to resolve 

the complaints. HT at 76 (testimony of the deciding official). There is no 

evidence that the deciding official was the subject of any of the appellant’s 

complaints, so his motive to retaliate would be relatively small, arising only from 

the administrative burden that the complaints placed on him and the poor 

reflection that they might have on the operations under his control. The 

proposing official, however, had a strong motive to retaliate because she was the 

subject of a pending EEO complaint by the appellant at the time she proposed his 

removal. RAF, Tab 18 at 97-100; HT at 10-11 (testimony of the proposing 

official). 

¶21 Nevertheless, the proven charge was very serious. The appellant had been 

AWOL for nearly 3 months when his removal was proposed, with no reliable 

indication that he would ever be able to return to duty. IAF, Tab 6, Subtab 4H. 

His continued absence caused an additional burden to his coworkers, who had to

work extra hours in order to make up for the time that the appellant was missing.

HT at 18-19 (testimony of the proposing official). Under those circumstances, we 

find it more likely than not that the proposing official would have taken action 

against the appellant even if she had no retaliatory motive. Furthermore, as noted 

above, the proposing official waited a significant period of time after the 
11

appellant’s barment to propose his removal. This does not lend itself to a finding 

that she seized the barment as an opportunity to avenge herself or to rid herself of 

a troublesome employee. Rather, it suggests that she waited, despite the attendant 

disruption in the workplace, to see if the appellant would be able to return to 

work before she determined to propose his removal. As for the deciding official, 

considering his lesser motive to retaliate in conjunction with the circumstances 

discussed above, we find that his removal decision was probably not an act of 

retaliation.

¶22 As for the Store Director, his role in the removal was only indirect. There 

is no evidence that he had any discussions with or otherwise influenced the 

proposing or deciding officials in this matter. However, his original, inaccurate 

report to base security set all of these events in motion, and he later declined to 

take the opportunity that the base commander presented him to influence the 

Navy to allow the appellant to return to work. Supra, ¶ 11. Furthermore, the 

agency failed to advance any nonretaliatory explanation for why the Store 

Director reported inaccurate information to base security. The appellant thus

argues that his removal was a product of the “seeds planted” by the Store 

Director. RPFR File, Tab 1 at 29-30. This appears to be a cat’s paw theory of the 

case—a theory under which the retaliatory motive of the Store Director 

influenced the appellant’s removal even though the Store Director did not 

personally implement the removal. See Aquino v. Department of Homeland 

Security, 121 M.S.P.R. 35, ¶ 19 (2014).

¶23 We find, however, that there is an insufficient connection between the Store 

Director’s actions and the barment to impute a retaliatory motive to the removal. 

Specifically, we agree with the administrative judge that the Navy’s independent 

investigation of the matter is key. RID at 7. The U.S. Supreme Court has 

explained that a supervisor’s biased report of alleged misconduct will be a 

proximate cause “if the independent investigation takes it into account without 

determining that the adverse action was, apart from the supervisor’s 
12

recommendation, entirely justified.” Staub v. Proctor Hospital, 131 S. Ct. 1186, 

1193 (2011). In this case, it is likely that the Navy would never have conducted 

its investigation in the first place if it were not for the Store Detector’s inaccurate 

report. However, there is no evidence that the Navy relied on the report itself in 

making its barment decision. The record shows instead that the Military Police 

gathered evidence independently, including the appellant’s fixed blade knife and 

his coworker’s statement that the appellant intended to “knock some heads off.” 

RAF, Tab 11 at 97-114. Notably, the coworker specifically told the Military 

Police that the appellant did not say he had a weapon. Id. at 103. The statements 

of probable cause made no mention of the Store Director’s report. RAF, Tab 18 

at 35, 37. Nor did they make any mention of the erroneous information contained 

in that report, i.e., the appellant allegedly threatening to use a firearm. Id. As for 

the Store Director telling the base commander that agency employees feared the 

appellant, we find that the Store Director offered this information only when the 

base commander specifically requested it. HT at 119 (testimony of the Store 

Director). There is no evidence that this answer was untruthful or that it would 

have been any different had the Store Director not been the subject of EEO 

complaints filed by the appellant. For these reasons, we find that any retaliatory 

actions on the part of the Store Director were not a proximate cause of the 

barment or the subsequent removal.

We lack the authority to review the appellant’s claim that he was denied due 

process as to the barment order.

¶24 The appellant argues that the agency denied him due process because he had 

no opportunity to respond to the charges that led to his AWOL, and the notice and 

opportunity to respond to the proposed removal were just empty formalities. 

RPFR File, Tab 1 at 17-24. 

¶25 To the extent that the appellant is arguing that he was denied due process 

concerning the barment itself, for the reasons discussed above, the Board lacks 

the authority to review the barment order. Supra, ¶ 13. Due process with respect 
13

to the agency’s removal action does not require that the appellant have an 

opportunity to contest the barment order. See Buelna v. Department of Homeland 

Security, 121 M.S.P.R. 262, ¶¶ 23-24 (2014). 

¶26 The Board has recently issued a line of cases explaining an employee’s due 

process rights in the analogous context of security clearance and sensitive 

position eligibility cases. Ryan v. Department of Homeland Security, 2014 MSPB 

64, ¶¶ 7-11; Flores, 121 M.S.P.R. 287, ¶ 12; Buelna, 121 M.S.P.R. 262, ¶¶ 27-28. 

Specifically, to the extent that there may exist viable alternatives to the proposed 

removal, i.e., alternatives that were not prohibited, impracticable, or outside 

management’s purview, an employee has the right to invoke the discretion of a 

deciding official with the authority to select such alternatives. Buelna, 

121 M.S.P.R. 262, ¶¶ 27-28. Because the Board announced this standard after the 

administrative judge issued his initial decision, the parties did not have a full and 

fair opportunity to develop the record in this regard, and we find that the current 

record is insufficient for the Board to make a determination at this time as to 

whether that standard has been met. We therefore remand this appeal for further 

adjudication on the due process issue. 
14

ORDER

¶27 For the reasons discussed above, we REMAND this case to the regional office 

for further adjudication in accordance with this Remand Order. The 

administrative judge shall afford the parties an additional opportunity to address 

the due process issue in light of the Buelna line of cases.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board