UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

JASON G. PETERS,

Appellant,

v.
DEPARTMENT OF THE IN TERIOR,

Agency. DOCKET NUMBER SF

- 0752

- 15

- 0751

- I

- 1

DATE: January 6, 2017



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant.

Kevin D. Mack , Esquire, Sacramento, California, 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 . 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 errone ous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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

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 C ode 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 The agency removed the appellant from the GS

- 11 Senior Law Enforcement Ranger position effective September 22, 2014, based on t he charge s of lack of candor ( four specifications) and conduct unbecoming a law enforcement officer ( one specification)

. Initial Appeal File (IAF), Tab 3, Subtabs 4b

- 4c, 4h. The specification s of charge 1 came to light as a result of the appellant’s statements
du ring the November 2013 investigation of the Chariot Wildland Fire by the agency’s Office of Professional Responsibility (OPR) . That fire started on July 6,
2013 , on Bureau of Land Management

- managed lands and then spread to private
and National Forest Ser vice lands, burning roughly 7050 acres, destroying
149 st ructures, and causing about $11 million in damage. IAF, Tab 3, Subtab 4h. The appellant was one of the first individuals to report the fire. Hearing Testimony (HT) (testimony of the deciding offic ial ) ( Mar. 29, 2016 , at 1

- 20, 41 )

. ¶3 On the day that the fire started, the appellant was operating a
law

- enforcement vehicle, a Jeep Rubicon, that caught fire and burned at the Butterfield Ranch campground, a location about 2 miles from the point of origin
of the fire

. Id . In the report of his actions after spotting the fire, the appellant
stated that “at 12:50” he “entered the area to search for any suspects whom may
have started the fire. I drove to an area where a ‘Y’ intersection is.

. . . I took th e right route.” IAF, Tab 3, Subtab 4i. Subsequently, in the November 20133

intervie w by OPR , the appellant initially repeated that at the Y he took the right route. However, as the interview progressed, he stated that he had earlier been at the Y and too k the left route, which led in to the area of the origin of the fire . He
stated that he was in that general fire burn area between app roximately 12:00 p.m. and 12:28 p.m. Id . The appellant also admitted that he did not r eport to the
Cal Fire invest igator during her investigation that began 2 days after the fire, nor his supervisor that he had been in the general fire burn area minutes before he reported the fire

. Id . The appellant further admitted that he did not come forward
with this information after fire investigators determined that the fire probably was vehicle ignited. 2 Id . The OPR report indicated that the appellant’s log entries for the date that the fire started indicate that he was patrolling another area , the Sawtooth Wilderness Area, from 1 2:00 p.m. to 12:28 p.m., the time that he
admitted he was in the general fire burn area. Id

. ¶4 Based on the appel lant’s admissions during the OPR investigation, the agency specified that the appellant lacked candor: (1) when he did not inform his supervi sor that he had driven in the fire burn area prior to the initiation of the
fire ; (2) when he did not inform the Cal Fi re investigator that he had driven in the fire burn area prior to the initiation of the fire; (3) when he did not state in his
official re port about the fire that he had been in the fire burn area prior to the initiation of the fire; and (4) when he omitted from his daily patrol log that he had driven in the fire burn area prior to the initiation of the fire. The agency specified
that his f ailure to provide the Cal Fire investigator with useful guidance or
assistance in directing the focus of the initial fire investigation constituted failure

2 The appellant maintained during the OPR investigation that the Jeep he was driving did not start the fire. However, in the civil actions brought to recover losses caused by the fire, the appellant was named as a co

- defendant and accused of starting the fire. IAF, Tab 3, Subtab 4i. The agency presented no evidence to show that the appellant intentionally or negligently caused the fire or violated any laws, rules, or regulations during his patrol on July 6, 2013, the date that the fire started.4

to cooperate fully, hindering the fire investigation, and was conduct unbecoming
a Federal law enforc ement officer. IAF, Tab 3, Subtab 4h. ¶5 The appellant appealed the agency’s a ction, denying the misconduct
, claiming that for a time after his Jeep burned, he suffered post

- traumatic stress disorder (PTSD) that caused him not to remember that he had driven into the fire burn area. He also alleged that the agency failed to provide minimum due process because the deciding official engaged in ex parte communications with the
Cal Fire investigator that the deciding official relied on in reach ing the decision to remove the appellant . Additionally, he cla imed that the agency’s action was discrimination on the basis of disability
, PTSD

. 3 ¶6 The administrative judge found not credible the appellant’s claim that he
did not remember that he had been in the general fire area immediately prior to the ignition of the C hariot Wildland Fire on July 6, 2013. IAF, Tab 35, Initial Decision (ID) at 28. He thus found that the agency proved that the appellant knowingly did not tell his supervisor and the Cal Fi re investigator that he was in
the fire burn area immediat ely preceding the Chariot Wildland Fire igniting on July 6, 2013

. ID at 28

- 31. The administrative judge also found that the agency proved that the appellant knowingly initially did not tell OPR in vestigators that
he was in the Chariot Wildland Fire burn area immediately preceding the July 6, 2013 fire, and that he knowingly failed to state in his official report of the Chariot Wildland Fire that he had been in the fire burn area immediately precedi ng the fire ignition. ID at 31

- 32. Additionally, he found that the appellant knowingly omitted that he had been in the fire burn area immediately preceding ignition from his July 6, 2013 daily log. ID at 32

- 33. Thus, the administrative judge

3 In his initial submissions, the appellant also alleged as affirmative defenses that the agency’s action constituted discrimination on th e basis of sex, including sex stereotyping, reprisal for engaging in protected equal employment opportunity activity, and reprisal for whistleblowing. IAF, Tab 1. However, at the conclusion of the hearing, the appellant withdrew these affir mative defense s. HT (testimony of the appellant ( March 30, 2016, at 408 )

.5

sustained charge 1. Further, the administrative judge found that the agency proved that the appellant failed to pro vide useful guidance to the Cal Fire investigator, and that by not providing useful assistance, the appellant engaged in conduct unbecoming t hat reflected poor judgment on his part and detracted from his reputation. ID at 33

- 35. Thus, he found that the agency also proved charge 2

. ¶7 As to the appellant’s affirmative defenses, t he administrative judge found that the deciding offici al’s commun ication with the Cal Fire investigator was only to ask her what type of report she had wanted about the fire from the appellant, i.e., whether there was a particular format for the report. The administrative judge found that this communication was cumulati ve and did not result in any pressure on the deciding official to rule in a particular manner. ID at 36

- 37. Thus, he found that the appellant failed to establish a due process violation. The administrative judge also found that the appellant established that he is an individual with a disability, PTSD. ID at 39. However, he found that the appel lant failed to show that he wa s a qualified individual with a disability in July 2013 because his PTSD was not diagnosed until February 26, 2014, and the appella nt presented no medical evidence that he was symptomatic in July 2013.
ID at 40. The administrative judge , therefore, found that the appellant failed to
show that PTSD caused him to provide incomplete information about his whereabouts prior to the igniti on of the C hariot Wildland Fire on July 6, 2013.
ID at 41

- 43. ¶8 Finally, the administrative judge found that the agency established that discipline for the proven misconduct promoted the efficiency of the service, and that the removal penalty was with in t he bounds of reasonableness. ID at 43

- 47. ¶9 In his petition for review, the appellant generally disagrees with the findings in the initial decision. He asserts that the agency fai led to prove that hi s
statements involved an element of d eception

. Peti tion for Review (PFR) File,
Tab 1. He con tends that, if he provided inaccurate information, he did so because
he suffered from PTSD , and the administrative judge erred in finding that the6

agency prove d lack of candor and conduct unbecoming. He also c onte nds that the administrative judge erred in finding that the deciding official’s ex parte communication with the CalFire investigator did not deprive the appellant of due

process. Additionally, he argues that the agency removed him for his lack of

memory o f the events of July 6, 2013 , and thus removed hi m because of his PTSD, constituting discriminati on on the basis of disability.

DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge properly f ound that the agency proved its charges. ¶10 Lack of candor “is a broader and more flexible concept” than falsification.
Ludlum v. Department of Justice , 278 F. 3d 1280 , 1284 (Fed. Cir. 2002). However, a lthough lack of candor does not require an “affirmative misrepresentation,” it “necessarily involves an element of deception.” Id

. at 1284

- 85. An agency alleging lack of candor must pr ove the following elements: (1) that the employee gave incorrect or incomp lete information; an d (2) that he did so knowingly. Fargnoli v. Department of Commerce
, 123 M.S.P.R. 330 , ¶ 17 (2016). ¶11 As the administrative judge found, it is undisputed that the appellant did not inform his supervis or and the CalFire investigator that he had driven in the fire burn area prior to the initiation of the fire , and that he did not state in his official report about the fire or in his d aily log that he had driven in the fire burn area prior to the initiation of the fire. Thus, the agency proved prong (1)of the test to
establish lack of candor for each spec ification of the lack of condor charge

. ¶12 The administrative judge relied on the t estimony of the witnesses who assisted in the investigations of the Chariot Wildland Fire from various perspectives, including to determine whether the Jeep fire was related to the wild
fire , as well as his observation of the appellant’s demeanor to find t hat the appellant was not credible when he testified that he omitted mentioning that he had been in the fire burn area from his statements to his supervis or , the CalFire7

investigator
, and from his reports because of lack of memory

. ID at 14

- 28. In support of his finding that the appellant was not credible, t he administrative judge
noted that the appellant’s firm recall of many other events on the day of the fire, that credible witnesses established that the appellant made a number of
inconsistent st atements as the various aspects of the investigation progressed, and that the appellant appeared nervous and uncomfortable while testifying. ID

at 28

- 29. The Board must defer to an administrative judge’s credibility determinations when they are based, ex plicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice
, 288 F. 3d 1288 , 1301 (Fe d. Cir. 2002)

. Here, we defer to the administrative judge’s finding that the appellant was not credible when he testified that memory lapse caused him to fail to report that he had been i n the fire burn area on July 6, 2013. Thus, we agree with the administrative judge that the agency established that the appellant omitted this critical information knowingly, and that the agency established prong (2) of the test to show lack of candor for each spec ification of
the lack of candor charge. ¶13 A generic c har ge such as conduct unbecoming does not require specific elements of proof. I t is established by proving that the employee committed the acts alleged in support of the broad label

. See Canada v. Department of Homeland Security
, 113 M.S.P.R. 509 , ¶ 9 (2010). Here, we agree with the administrative judge that the appellant’s 14 years of law enforcement experience taught him that he was to cooperate in the fire investigation , and he volunteered to assist the CalFire investigator with her investigation. ID at 33. Nonetheless, the record shows that the appellant failed to tell the investigator the location of the columns of smoke that he observed on the day of the fire, and s he testified
that t his hindered her efforts to narrow the possible area to look for the source of
the fire. ID at 34. We agree with the administrative judge that the appellant’s failure to provide effective assistance to a fellow law enforcement officer when8

he was able to do so constituted conduct unbecoming that reflected poor judgment on his part and detracted from his reputation. ID at 34

- 35.
The administrative judge properly found that t he appellant was not denied due process. ¶14 Pursuant to the U.S. Court of Appeals for the Federal Circuit’ s decisions in
W ard v. U.S. Postal Service
, 634 F. 3d 1274 , 1279

– 80 (Fed. Cir. 2011 ), and
Stone v. Federal Deposit Insurance Corporation
, 179 F. 3d 1368 , 1376

- 77 (Fed.
Cir. 1999), a deciding official violates an employee’s due p rocess rights when he relies upon new and material ex parte information as a basis for his decisions on the merits of a proposed charge or the penalty to be imposed. The Board has held
that an employee’s due process right to notice extends to ex parte inf ormation provided to a deciding official, if the information was considered in reaching the decision and not previously disclosed to the appellant. Solis v. Department of
Justice , 117 M.S.P.R. 458 , ¶ 7 (2012). Ward
, Stone , and their progeny recognize, however, that not all ex parte communications rise to the level of due process violations; rather, only ex parte communications that introduce new and material
information to the deciding official are constitutionally infirm. Id
., ¶ 8. ¶15 In Stone , the Federal Circuit identified the following factors to be used to
determine if ex parte i nformation is new and material: (1) whether the ex parte information introduced cumulative, as o pposed to new, information; (2) whether the employee knew of the information and had an opportunity to respond; and (3) whether the communication was of the type likely to result in undue pressure on the deciding official to rule in a particular manne r. Stone , 179 F. 3d at 1377

. Ultimately, the Board must determine whether the ex parte communication is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of pro perty under such circumst ances. ¶16 Here, the deciding official testified that he got in touch with CalFire to inquire what sort of report the y had requested from the appellant. HT (testimony of the deciding official) (March 29, 2016, at 92 ) . He did not speak with the9

investigator assigned to investigate the fire. Id . Rather, he spoke with another individual at CalFire to try to understand if there was a standard reporting format requested of a party reporting a fire. Id

. The deciding official was aware that the agency had prov ided CalFire with the official report of the fire prepared for the agency by the appellant. Id . The deciding official testified that this information
did not help him with his decision. Id

. at 93. All he learned from CalFire was
that there was not a st andard reporting format. Id

. at 95. ¶17 We agree with the administrative judge that t he information that the deciding official received from CalFire was merely cumulative. Stone , 179 F. 3d

at 1377 . The deciding official did not get the information from the investigator assigned to the Chariot Wildland Fire. Thus, there was no risk that the
conversation would result in comment s to the deciding official about the appellant’s involvement in her investigation. Further, the deciding official

was not asking about the content of the appellant’s witness statement to the investigator, only its format, and he learned that there was no standard format. He knew that the appellant had made a statement to CalFire, and he just did not know th e format of the statement. In any event, the deciding official had the appellant’s official report of the Chariot Wildland Fire as did CalFire. We find no reason to doubt the deciding official’s testimony that he did not rely on h i s contact with CalFire during the decision

- making process , and the contact did not provide a basis for his decision on the merits of a propo sed charge or the penalty
to be imposed.
The administrative judge properly found that the appellant failed to prove that the agency discr imina ted against him on the basis of disability. ¶18 As a Federal employee, the appellant’s disability discrimination claim
arises under the Rehabilitation Act of 1973. However, the Equal Employment Opportunity Commission (EEOC) regulations implementing the Americans with
Disabili ties Act (ADA), as amended by the ADA Amendments Act (ADAAA), have been incorporated by reference into the Rehabilitation Act, and the Board10

applies them to determine whether there has been a Rehabilitation Act violation. Pinegar v . Federal Election Commission
, 105 M.S.P.R. 677 , ¶ 36 n. 3 (2007);
29 C.F.R. § 1614.203 (b). Those regulations are found at 29 C.F.R. p art 1630. ¶19 To prove disability discrimination, the appel lant first must establish that he is an individual with a disability as that term is defined in the ADAAA and the EEOC regulations. See
, e

. g ., Doe v. Pension Benefit Guaranty Corporation , 117 M.S.P.R. 579 , ¶ 38 (2012). The appellant may prove that he ha s a disability by showing that: (1) he has a physical or mental impairment that substantially limits one or more major life activities; (2) he has a record of such impairment; or (3) he is regarded as having such an impairment. 42 U.S.C. § 12102 (1); 29 C.F.R. § 1630.2 (g)(1). An impairment is considered to be a disability if it substantially
limits an indiv idual’s ability to perform a major life activity as compared to most people in the general population. 29 C.F.R. § 1630.2 (j)(1)(ii). Major life activities include, but are not limited to, caring for oneself, performing manual tasks, eating, lifting, bending, concentrating, communicating, and working; major life activities also include the operation of majo r bodily functions. 42 U.S.C. § 12102 (2). The term “substantially limits” is construed broadly in favor of expansive coverage, to the maximum extent permitted under the ADA, and is not meant to be a demanding standard. 29 C.F.R. § 1630.2 (j)(1)(i). ¶20 As the administrative judge found, the appellant proved that he was diagnosed with PTSD on February 26, 201 4. T he administrative judge properly found that the appellant established that he was a person with a disability that limited his ability to perform major life act ivities, including sleeping
and working. ¶21 The administrative judge carefully addressed the appellant’s assertion that, because the agency removed him for his failure to provide complete information
about the events on the day that the Chariot Wildland Fire ignited , and the appellant’s failure was a result of a lack of memory caused by his PTSD, the agency removed the appellant because of his disability. ID at 41

- 42. He found11

that the detail the appellant provided in his official report concerning his activities on the date that the Chariot Wildland Fire ignited indicates that he had
excellent r eca ll of the events of that day. ID at 41. He found that the appellant failed to explain why he could not recall that he drove up the left fork of the
Y intersection, a presumably non traumatic event, when he could recall in detail
what he described as th e traumatic event of his Jeep catching fire. ID at 41. Additionally, the administrative judge found that the appellant did not claim lack of recall during his OPR interview as the reason that he did not previously tell anyone that he had driven down the left fork at the Y intersection ; rather, he told
the interviewers after he admitted that he drove down the left fork that did not deem that information relevant. ID at 41. ¶22 Further , the administrative judge addressed the appellant’s assertion that the OPR investigators pressured him to not raise lack of memory as an issue . He found that the OPR investigators were aware that the appellant was stressed by reliving the experience of the Jeep fire and the fear that the Jeep might explode
, and they discusse d the Employee Assistance Program with the appellant. ID

at 42. Thus, the administrative judge found that the appellant could raise stress during his OPR interview, and if lack of memory was the real reason for his omitting the fact that he drove the lef t fork of the Y intersection on the day of the
fire , he could have disclosed that during the OPR interview, rather than giving
other reasons for his omission. ID at 42. In any event, we note, as stated above, that the administrative judge found incredibl e the appellant’ s assertion that he had

no memory that he drove the left fork of the Y intersection , and that that finding
is entitled to deference. Haebe
, 288 F. 3d at 1301

. We agree with the administrative judge that the appellant failed to prove that t he agency discriminated against him on the basis of disability. ¶23 Finally, although the appellant does not argue that the penalty is unreasonable in his petition for review, we agree with the administrative judge that the removal penalty is within the boun ds of reasonableness for the sustained12

misconduct. The app ellant’s lack of candor is a seri ous offense that strikes at the heart of the employer

- employee relationship. See Ludlum v. Department of
Justice , 87 M.S.P.R. 56 , ¶ ¶ 28, 29 (2000), aff’d
, 278 F. 3d 1280 (Fed. Cir. 2002). Because the appellant was a law enforcement officer
, and it is well settled that law enforcement officers may be held to a higher standard of conduc t than other Federal employees, the agency was entitled to hold him to a higher standard of
conduc t. Harti gan v. Veterans Administration
, 39 M.S.P.R. 613 , 619 (1989); s ee Dunn v. Department of the Air Force , 96 M.S.P.R. 166 , ¶ ¶ 2, 12

- 18 (2004) ( finding that removal was a reasonable penalty when the employee engaged in conduct unbecoming and exhibited a lack of candor), aff’d
, 139 F. App’x 280 (Fed. Cir. 2005).

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHT S You have the right to request further r eview of this final decision.

Discrimination Claims: Administrative Review You may request review of this final decision on your discrimination claims by the Equal Employment Opportunity Com mission (EEOC). Title 5 of
the United States 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 Oppor tunity Commission

131 M Street, NE Suite 5SW12G Washington, D.C. 2050713

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
f ile, 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 United States
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 have 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. See 42 U.S.C. § 2000e

- 5 (f) and
29 U.S.C. § 794a

.

FOR THE BOARD:

Washington, D.C. ______________________________ Jennifer Everling Acting Clerk of the Board