UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TIMOTHY C. KNIGHT,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

SF-0752-15-0309-I-1

DATE: April 27, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Bobby R. Devadoss and Stephanie Bernstein, Esquire, Dallas, Texas, for 

the appellant.

Kerri E. Bandics, Esquire, San Francisco, 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 

affirmed the appellant’s 30-day suspension. 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 interpretation of statute or 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. See 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. However, we MODIFY the initial 

decision as stated in ¶¶ 21-27 below as to the administrative judge’s analysis of 

the appellant’s whistleblower defense. Except as expressly MODIFIED by this 

Final Order, we AFFIRM the initial decision. 

¶2 At all relevant times, the appellant was a GS-12 District Ranger for the 

agency. Initial Appeal File (IAF), Tab 9 at 31, Tab 11 at 4. This is a supervisory 

and managerial position whose duties involve working with a team to administer 

an area of National Forest land. IAF, Tab 11 at 28-33. On November 6, 2012, 

the agency proposed the appellant’s removal based on one charge of “off-duty 

misconduct” (five specifications) and one charge of “inappropriate use of 

government resources” (four specifications). The charges stemmed from six 

inappropriate emails and one inappropriate text message that the appellant sent to 

a coworker with whom he had had a sexual relationship, as well as one 

inappropriate email that the appellant accidentally sent to another coworker. IAF, 

Tab 10 at 67-69. After the appellant responded, the deciding official issued a 

decision sustaining the charges, but mitigating the penalty to a 30-day suspension. 

IAF, Tab 9 at 32-43.

¶3 The appellant filed a formal equal employment opportunity (EEO) 

complaint, alleging among other things that his suspension was in reprisal for 

prior EEO activity. IAF, Tab 1 at 11-12. When the agency returned a finding of 
3

no discrimination, the appellant filed a Board appeal. IAF, Tab 1. He waived his 

right to a hearing. IAF, Tab 27. After the close of the record, the administrative 

judge issued an initial decision affirming the suspension. IAF, Tab 33, Initial 

Decision (ID) at 1, 21. She sustained both charges and all but one of the 

specifications and found that the agency established a nexus between the

appellant’s misconduct and the efficiency of the service. ID at 4-11. The 

administrative judge also considered the appellant’s affirmative defenses of due 

process violation, reprisal for EEO activity, and whistleblower retaliation, but she 

found that the appellant failed to prove them. ID at 11-18. Finally, the 

administrative judge found that the deciding official considered the pertinent 

penalty factors and that the 30-day suspension did not exceed the tolerable limits 

of reasonableness. ID at 18-21.

¶4 The appellant has filed a petition for review, disputing many of the 

administrative judge’s factual findings, particularly regarding her penalty 

analysis. Petition for Review (PFR) File, Tab 1 at 1-21. He also argues that he is 

aware of new and material evidence about similarly situated employees that the 

agency withheld during discovery. Id. at 22-23. The agency has filed a response. 

PFR File, Tab 3.

The appellant’s discovery dispute is not properly before the Board.

¶5 On review, the appellant alleges that the agency withheld evidence that 

would have undermined the credibility of one of its witness’s written statements. 

PFR File, Tab 1 at 6. He also alleges that the agency was aware of three similarly

situated employees whom the agency treated less harshly, but it failed to provide 

information about these employees as requested during discovery. Id. at 11, 15, 

22-23.

¶6 We find that appellant is essentially raising a discovery dispute for the first 

time on petition for review. The appellant’s failure to file a motion to compel 

below precludes him from attempting to do so now. See Szejner v. Office of 

Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217 
4

(Fed. Cir. 2006). Furthermore, although the appellant alleges that the comparator 

evidence is “new and material,” he indicates that he was aware of this evidence 

before the record closed. PFR File, Tab 1 at 15, 22-23. Because the appellant 

was aware that this evidence existed and did not file a motion to compel, we find 

that it does not fit the definition of “new.” See 5 C.F.R. § 1201.115(d) (“To 

constitute new evidence, the information . . . must have been unavailable despite 

due diligence when the record closed.”).

The agency proved Charge 1.

¶7 The facts underlying the charges are largely undisputed and are set forth 

more fully in the initial decision. ID at 2-8. Briefly, and by way of background, 

the appellant and his coworker, C.B., a Budget Officer not normally in his chain 

of command, began a consensual sexual relationship in December 2012. 2

 IAF, 

Tab 10 at 91, 107, 112, 121. They took a hiatus during March 2013, and then 

resumed their relationship in April. Id. at 91, 107-08, 114-18. On June 24, 2013, 

C.B. ended the relationship permanently. Id. at 91, 108, 119. On June 27 and 29, 

2013, C.B. informed multiple agency officials that the appellant was engaging in 

stalking and harassing behavior, including sending her inappropriate emails and 

text messages, that she feared for her safety, and that for these reasons, she was 

stepping down from her temporary role as Forest Supervisor. Id. at 91-92, 

105-06, 123-24.

¶8 On July 9, 2013, the agency launched an investigation into C.B.’s 

allegations. Id. at 89. During the investigation, the agency uncovered the text 

message and six of the emails at issue. Id. at 77-86, 96-97. The seventh email 

was sent after the investigation was concluded. Id. at 68-69, 87-88. As explained 

above, the administrative judge found that all of these communications except for 

 2 During the period in question, the appellant and C.B. rotated on a monthly basis with 

other employees as acting Forest Supervisor. IAF, Tab 30 at 27. Whichever employee 

was acting at any given time served as immediate supervisor of the others in the 

rotation. Id. 
5

one constituted actionable misconduct, and she therefore sustained both charges. 

ID at 4-11; see Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. 

Cir. 1990) (holding that, where more than one event or factual specification 

supports a single charge, proof of one or more, but not all, of the supporting 

specifications is sufficient to sustain the charge).

¶9 On review, the appellant appears to argue that the agency failed to prove 

Charge 1 because none of the communications at issue in that charge constituted 

actionable misconduct. PFR File, Tab 1 at 1-3. Because proof of Charge 1 and 

the issue of nexus are intertwined, we will address the appellant’s arguments 

below. For the reasons discussed below and explained in the initial decision, we 

agree with the administrative judge that Charge 1, Specifications 1 through 4 

constitute actionable misconduct and that the agency therefore proved its charge 

of “off-duty misconduct.” Infra ¶¶ 14-19; ID at 4-6.

The agency proved Charge 2.

¶10 The administrative judge sustained Charge 2, “inappropriate use of 

government resources,” finding that the four emails at issue originated from the 

appellant’s Government account and violated two agency regulations concerning 

use of Government telecommunications resources. ID at 6-8. On review, the 

appellant argues that the administrative judge identified only two emails that he 

sent from his Government account, rather than four, as the administrative judge 

stated in her initial decision. PFR File, Tab 1 at 5. We disagree. The notice of 

proposed removal identified four inappropriate emails that originated from the 

appellant’s Government account, IAF, Tab 10 at 68-69, 82-88, and the 

administrative judge discussed all four of them in her initial decision, ID at 7-8. 

¶11 The appellant also disputes the administrative judge’s finding that these 

emails violated the agency’s use policy. PFR File, Tab 1 at 4-5. He argues that 

one of the agency regulations at issue only prohibits the use of “office 

equipment” for activities that would violate anti-discrimination statutes and that 

he did not use “office equipment” to send the emails at issue or use any 
6

discriminatory language. Id. at 4; IAF, Tab 11 at 74. We disagree with the 

appellant’s interpretation of this regulation. First, we find that “office 

equipment” under the regulation explicitly includes email. IAF, Tab 11 at 73. 

Second, although the appellant is correct that the examples listed of “illegal, 

inappropriate, or offensive activities” consist primarily of discriminatory speech, 

the list is explicitly nonexhaustive. Id. at 74. We therefore find that, on its face, 

the regulation also prohibits offensive speech that is not discriminatory. The 

appellant further argues that there is no evidence that anyone was actually 

offended by these emails. PFR File, Tab 1 at 5. The administrative judge, 

however, already addressed this contention, finding that the appellant himself 

admitted that the employee whom he called an “idiot” in one email was offended, 

and in any event, the regulation prohibits emails that are “inappropriate or

offensive.” ID at 7-8. We agree with the administrative judge. Furthermore, we 

find that an email does not actually have to offend anyone to be considered 

inherently offensive.

¶12 The appellant argues that the second agency regulation at issue only applies 

to employees “acting in an official capacity,” and he was not acting in an official 

capacity when sending any of the emails listed under Charge 2. PFR File, Tab 1 

at 4-5; IAF, Tab 11 at 44. We agree with the appellant’s interpretation of this 

regulation, and we also agree that it is debatable whether he was acting in an 

“official capacity” when he sent some of the emails at issue. However, we find it 

indisputable that the appellant was acting in an official capacity when he sent the 

email discussed in Charge 2, Specification 3 pertaining to the processing of his 

time sheet. IAF, Tab 10 at 68, 85-86. In any event, because all of the emails 

were inappropriate and were prohibited by the other agency regulation as 

discussed above, we agree with the administrative judge that the agency proved 

its charge of “inappropriate use of government resources.” ID at 10.

¶13 Finally, the appellant argues that the administrative judge found that the 

emails underlying Charge 2, Specifications 2 and 3 interfered with Government 
7

business but that the agency did not charge him with interfering with Government 

business. PFR File, Tab 1 at 5-6. He further argues that he did not actually 

interfere with Government business, and he downplays the offensiveness of his 

emails. Id. at 6. We agree with the appellant that he was not charged with 

interfering with Government business. However, regardless of whether the 

appellant’s emails interfered with Government business, we find that the 

administrative judge properly sustained Charge 2 for the reasons discussed above. 

The agency proved that the charged misconduct bore a nexus to the efficiency of 

the service.

¶14 An agency may take an adverse action under 5 U.S.C. chapter 75 “only for 

such cause as will promote the efficiency of the service.” 5 U.S.C. § 7513(a). In 

this case, the emails and text message at issue in Charge 1 were sent from the 

appellant’s personal accounts while he was off-duty, whereas the emails at issue 

in Charge 2 were sent from his Government account. 3

 IAF, Tab 10 at 67-69. The 

administrative judge conducted separate nexus analyses for the two charges. ID 

at 9-11.

¶15 Regarding Charge 1, the administrative judge correctly noted that an agency 

may establish nexus between off-duty misconduct and the efficiency of the 

service by: (1) a rebuttable presumption in certain egregious circumstances; 

(2) preponderant evidence that the misconduct adversely affects the appellant’s or 

coworkers’ job performance or the agency’s trust and confidence in the 

appellant’s job performance; or (3) preponderant evidence that the misconduct 

interfered with or adversely affected the agency’s mission. ID at 9; Kruger v. 

Department of Justice, 32 M.S.P.R. 71, 74 (1987). She found that the agency 

established nexus under the second method, i.e., by showing that the appellant’s 

 3 It is not clear whether the appellant was in duty status when he sent the emails 

underlying Charge 2, but we find that this information would be immaterial to the 

analysis.
8

misconduct adversely affected C.B.’s job performance as well as the agency’s 

trust and confidence in him to perform his duties. ID at 9-10.

¶16 On review, the appellant argues that the agency failed to prove nexus 

because his off-duty conduct was not criminal in nature and that a presumption of 

nexus only arises in cases of egregious criminal conduct. 4

 PFR File, Tab 1 at 3-4. 

To the extent that the appellant is arguing that noncriminal off-duty misconduct 

never bears a nexus to the efficiency of the service, we disagree. The Board has 

found on multiple occasions that agencies established nexus between noncriminal, 

off-duty misconduct and the efficiency of the service. See Doe v. Department of 

Justice, 113 M.S.P.R. 128, ¶¶ 20-21, 34 (2010). Moreover, as explained above, 

the administrative judge in this case did not rely upon a presumption of nexus. 

Rather, she found that the emails and message that the appellant sent from his 

personal accounts adversely affected C.B.’s job performance, as well as

management’s trust and confidence in the appellant’s ability to perform his job.

ID at 10-11.

¶17 Regarding C.B.’s job performance, the appellant argues that the emails did 

not “greatly upset” her as the administrative judge found, that they did not affect 

her job performance, and that she did not actually stand down as acting Forest 

Supervisor. PFR File, Tab 1 at 1-3, 6. He further argues that C.B.’s statements 

in support of these allegations postdated the agency’s suspension decision. PFR 

File, Tab 1 at 6; IAF, Tab 30 at 26-30. As an initial matter, we find it immaterial 

that C.B.’s statement postdates the agency’s suspension decision. It is 

well settled that the Board’s review is not limited to the administrative record 

before the agency; rather, the Board is mandated by statute to consider de novo 

 4 The appellant cites multiple circuit court decisions in support of his argument. PFR 

File, Tab 1 at 3. However, the only circuit court with controlling authority over the 

Board is the U.S. Court of Appeals for the Federal Circuit. Fairall v. Veterans 

Administration, 33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987). To the extent 

that these decisions from other circuits are contrary to our established precedent, we 

find them unpersuasive.
9

all the relevant evidence presented by both parties. Zeiss v. Veterans 

Administration, 8 M.S.P.R. 15, 17-18 (1981). As for whether the appellant’s 

conduct “greatly” upset C.B., we find the administrative judge’s choice of this 

adjective to be of little importance. We find that the nature of the 

communications underlying Charge 1 are such that a reasonable person could be 

upset by them, IAF, Tab 10 at 77-80, and the record shows that C.B. was, in fact, 

upset by them enough for her to alter her work arrangements by teleworking for a 

time, enlisting other employees to attend meetings and conduct budget-related 

business with the appellant in her stead, and modifying the ways in which she 

communicated with the appellant, IAF, Tab 30 at 30. As for whether C.B. 

actually stepped down as acting Forest Supervisor, the administrative judge did 

not so find, and we find that this is also immaterial to the nexus issue. It is 

undisputed that C.B. informed her supervisor that she wished to step down, thus 

demonstrating another way in which the appellant’s off-duty misconduct affected

the workplace. Id.

¶18 Regarding the agency’s loss of trust and confidence in the appellant, the 

administrative judge found that the deciding official had a valid basis for concern 

about the appellant’s ability to “control his emotions and communicate in a 

professional manner if one of his employees or a member of the public crosses 

him.” ID at 10; IAF, Tab 30 at 24. The appellant argues that the administrative 

judge erred in finding that his “supervisors” lost trust and confidence in him 

because he has only one supervisor, and it is not the deciding official. PFR File, 

Tab 1 at 7; ID at 10. Even so, we find that this is immaterial because the 

deciding official’s declaration is sufficient to demonstrate that agency 

management lost confidence in the appellant, which is all that is required for a 

showing of nexus. See Kruge, 32 M.S.P.R. at 74; see also Batara v. Department 

of the Navy, 123 M.S.P.R. 278, ¶ 7 (2016) (determining that a supervisor’s 

opinions are insufficient to overcome the agency’s judgment concerning the 

seriousness of the misconduct and the appropriateness of the agency-imposed 
10

penalty). The appellant also argues that his final performance evaluation for the 

period encompassing March through September 2013 belies the agency’s 

supposed concerns about his ability to perform. PFR File, Tab 1 at 7-8. 

However, even if the agency’s concerns about the appellant’s ability to perform 

in the future have not borne out, we find that this does not undermine the 

legitimacy of those concerns. Finally, the appellant argues that the administrative 

judge erred in finding that he was not subject to on-site supervision. PFR File, 

Tab 1 at 7; ID at 10. Although this may be true, we find that it does little to 

detract from the administrative judge’s nexus analysis overall. For the reasons 

explained in the initial decision, we agree with the administrative judge that the 

agency established a nexus between the off-duty misconduct underlying Charge 1 

and the efficiency of the service. ID at 9-10.

¶19 As to Charge 2, the administrative judge found the issue of nexus to be 

self-evident, and so do we. ID at 10.

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

employment opportunity activity.

¶20 The administrative judge found that the appellant failed to prove this 

affirmative defense because there was no evidence that either the proposing or 

deciding official was aware of his prior EEO activity. ID at 12. On review, the 

appellant argues that the proposing and deciding officials must have known about 

his EEO activity because of agency policy and their “statutory duty to know all of 

the complaints that were affiliated with their actions.” PFR File, Tab 1 at 8. The 

appellant, however, has not identified the statutes or provided any evidence of 

these purported agency policies. We find an inadequate basis to infer that these 

officials actually knew of the appellant’s prior EEO activity contrary to their 

declarations. IAF, Tab 30 at 22-23. We therefore agree with the administrative 

judge that the appellant did not prove his affirmative defense of retalation for 

EEO activity. ID at 11-12; see Newberry v. U.S. Postal Service, 49 M.S.P.R. 348, 

354 (1991).
11

The agency proved by clear and convincing evidence that it would have 

suspended the appellant notwithstanding his protected disclosure.

¶21 The administrative judge found that the appellant made a protected 

disclosure in March 2013, when the appellant had “heated discussions” with the 

Forest Fire Management Officer and Deputy Forest Fire Management Officer 

(DFFMO) about firefighting tactics. ID at 13-15; IAF, Tab 9 at 50, Tab 29 at 27. 

Specifically, the appellant told these individuals that the “maximum suppression” 

tactic that the agency was considering was “extremely hazardous” to the safety of 

firefighters. IAF, Tab 9 at 50, Tab 29 at 27. The administrative judge found that 

this disclosure went beyond mere policy disagreement and concerned a matter 

that the appellant reasonably believed constituted a substantial and specific 

danger to public health and safety. ID at 14-15. The administrative judge also 

found that the deciding official became aware of the appellant’s disclosure during 

his November 25, 2014 oral reply to the notice of proposed removal. ID at 16; 

IAF, Tab 10 at 4. Thus, the appellant established through the knowledge/timing 

test that his disclosure was a contributing factor in the suspension. ID at 16; see 

5 U.S.C. § 1221(e)(1). Nevertheless, considering the factors set forth in Carr v. 

Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), the 

administrative judge found that the agency proved by clear and convincing 

evidence that it would have suspended the appellant notwithstanding his 

disclosure. ID at 17-18. 

¶22 In determining whether an agency has shown by clear and convincing 

evidence that it would have taken the same personnel action in the absence of 

whistleblowing, the Board will consider the following factors: the strength of the 

agency’s evidence in support of its action; the existence and strength of any 

motive to retaliate on the part of the agency officials who were involved in the 

decision; and any evidence that the agency takes similar actions against 

employees who are not whistleblowers but who are otherwise similarly situated. 

Carr, 185 F.3d at 1323. On review, the appellant argues that the administrative 
12

judge erred in finding that the agency’s evidence in support of the suspension was 

strong. Specifically, he argues that the administrative judge erred in finding that 

his “supervisors” lost trust in his ability to perform. PFR File, Tab 1 at 10; ID 

at 17. We acknowledge that the proposing and deciding officials may not have 

been in the appellant’s direct supervisory chain and that there is otherwise no 

evidence that anyone in his supervisory chain personally lost trust and confidence 

in him. However, as explained above, we find that the record is sufficient to 

establish that the proposing and deciding officials had legitimate misgivings 

about the appellant’s ability to perform his duties appropriately in the future. 

Supra ¶ 18. Therefore, we find that the appellant’s argument detracts very little 

from the administrative judge’s findings on this issue.

¶23 Regarding the second Carr factor, the strength of retaliatory motive, the 

appellant argues that the administrative judge failed to consider that the deciding 

official was not the only one who was aware of his disclosure. The proposing 

official knew about it as well, as did the DFFMO, who also played a role in the 

agency’s action. PFR File, Tab 1 at 8-9; IAF, Tab 26 at 221. We agree with the 

appellant that these individuals were aware of his disclosure and that they were 

both involved in his suspension—the proposing official in proposing the 

appellant’s removal, and the DFFMO in initially referring C.B.’s complaints 

about the appellant to the agency’s law enforcement and Office of Civil Rights. 

IAF, Tab 10 at 124-25. We find that the roles and motivations of these 

individuals are relevant to the clear and convincing evidence issue and that they 

must be considered in a proper evaluation of the evidence. See McCarthy v. 

International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 31 (2011) 

(explaining that, in evaluating the clear and convincing evidence issue, the Board 

will consider any motive to retaliate on the part of the agency official who 

ordered the action, as well as any motive to retaliate on the part of other agency 

officials who influenced the decision), aff’d, 497 F. App’x 4 (Fed. Cir. 2012); see 

also Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012) 
13

(holding that the Board must evaluate all the pertinent evidence in determining 

whether an element of a claim or defense has been adequately proven).

¶24 Next, we find that the DFFMO had a very strong motive to retaliate against 

the appellant. He was one of the individuals with whom the appellant engaged in 

the “heated discussions” at issue, he apparently disagreed with the appellant’s 

position, and the appellant’s disclosure directly implicated the DFFMO’s duties 

and responsibilities. Furthermore, as the appellant argues on review, on June 10, 

2014, shortly after the disclosure, a firefighter using maximum suppression 

tactics died while fighting a forest fire under the DFFMO’s authority.

5

 PFR File, 

Tab 1 at 9; IAF, Tab 6 at 125, Tab 24 at 6. As for the proposing official, we find 

that he had little, if any, motive to retaliate. Although the record shows that the 

proposing official was aware that the appellant made recommendations of some 

type regarding firefighting, which the agency ultimately rejected, there is no 

indication that he knew or was in any way concerned about the particulars of the 

appellant’s disclosure. IAF, Tab 26 at 221, Tab 30 at 22. Moreover, the 

proposing official’s position during the relevant time period was Deputy Regional 

Forester for Operations, and there is no indication that the proposing official or 

his duties and responsibilities were directly implicated in the disclosure or the 

subsequent death of the firefighter. IAF, Tab 30 at 21.

¶25 The appellant also disputes the administrative judge’s finding that the 

deciding official had little motive to retaliate. PFR File, Tab 1 at 10; ID at 17. In 

particular, the appellant argues that the deciding official was formerly the Deputy 

Regional Forester for Fire and Aviation and “actually formulated and guided” the 

maximum suppression policy. PFR File, Tab 1 at 10. The appellant, however, 

 5 The appellant also alleges that five more firefighters have died while using maximum 

suppression tactics during the pendency of this appeal. PFR File, Tab 1 at 9-10. 

Although this fact might strengthen the administrative judge’s finding that the 

appellant’s disclosure was protected, we find that it has no bearing on whether the 

agency proved by clear and convincing evidence that it would have suspended the 

appellant when it made its decision.
14

has not cited any specific evidence in support of his allegation apart from his 

EEO complaint and “the volumes of evidence provided in the record.” Id. We 

have reviewed the appellant’s EEO complaint, but we find nothing that would 

support his allegations about the deciding official’s connection to the disclosure. 

IAF, Tab 26 at 217-19. The appellant is responsible for specifying with 

reasonable clarity in his petition for review the location of the evidence that he is 

relying on, but he has not explained where in the “volumes of evidence” any 

support for his allegations might be located. We therefore find that his arguments 

provide no basis to disturb the administrative judge’s finding that the deciding 

official had little retaliatory motive. See Weaver v. Department of the Navy, 

2 M.S.P.R. 129, 133 (1980) (determining that, before the Board will undertake a 

complete review of the record, the petitioning party must explain why the 

challenged factual determination is incorrect, and identify the specific evidence in 

the record which demonstrates the error), review denied, 669 F.2d 613 (9th Cir. 

1982) (per curiam).

¶26 Regarding the third Carr factor, the administrative judge found that neither 

party presented evidence of similarly situated nonwhistleblowers and that this 

factor was therefore irrelevant. ID at 17-18. The appellant does not directly 

challenge this finding on review, and we see no basis to disturb it.

¶27 Weighing the two relevant factors together, we agree with the 

administrative judge’s ultimate conclusion that the agency proved by clear and 

convincing evidence that it would have suspended the appellant even absent his 

disclosure. ID at 18. Although the DFFMO had a very strong motive to retaliate, 

we find that his influence over the agency’s action was remote; he merely 

referred C.B.’s complaints to the appropriate officials. IAF, Tab 10 at 124-25. 

The investigation was actually conducted by another agency official at the 

appellant’s supervisor’s behest. Id. at 89-103. Although the DFFMO provided a 

declaration for the investigation that contained a rather unflattering depiction of 

the appellant’s behavior, that declaration did not provide a basis for any of the 
15

charges against the appellant, and there is no indication that it substantially 

influenced the course of the agency’s action. Id. at 123-26. Furthermore, even if 

the DFFMO did nothing about C.B.’s complaint (which would be contrary to 

agency policy, as the DFFMO describes it), we find that the investigation still 

would have occurred and the appellant would have been disciplined because C.B. 

also complained to the appellant’s supervisor, who ultimately initiated the 

investigation. Id. at 90, 224-25. In sum, we find that, although the DFFMO’s 

motive to retaliate was very strong, he had little if any influence over the 

suspension. Considering the DFFMO’s strong retaliatory motive and slight 

influence over the suspension, the proposing and deciding officials’ slight 

motives and strong influence, and the strong evidence in support of the 

suspension decision, we agree with the administrative judge that the agency 

proved by clear and convincing evidence that it would have suspended the 

appellant notwithstanding his March 2013 disclosure.

The agency established that the deciding official considered all of the pertinent 

penalty factors and that the 30-day suspension was within the tolerable limits of 

reasonableness.

¶28 The administrative judge found that the deciding official considered all of 

the pertinent penalty factors and that his penalty selection was therefore entitled 

to deference. ID at 18-19. She further found that, in light of all these factors, the 

30-day suspension was within the tolerable limits of reasonableness. ID at 19-21. 

On review, the appellant addresses each of the penalty factors set forth in 

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), and argues 

that the 30-day suspension was inappropriate. PFR File, Tab 1 at 11-21.

¶29 Regarding the first Douglas factor, the nature and seriousness of the 

offense, and its relation to the appellant’s duties, position, and responsibilities,

the appellant appears to dispute the deciding official’s finding that he and C.B. 

interact frequently at work. PFR File, Tab 1 at 11-12; IAF, Tab 9 at 35-36. 

However, the record, including C.B.’s declaration and the appellant’s own 
16

inappropriate email to C.B. regarding his timesheet, suggests that they do interact 

frequently at work. IAF, Tab 10 at 85-86, Tab 30 at 29-30.

¶30 Regarding the second factor, the appellant’s job level and type of 

employment, he argues that the deciding official failed to explain how this factor 

relates to the penalty analysis. PFR File, Tab 1 at 12. We disagree. The 

deciding official found that the appellant is a supervisor and manager, and the 

agency expected him to be a leader and an example to the other employees. IAF, 

Tab 9 at 37-38. The deciding official’s assessment of this factor is consistent 

with well-established Board precedent. See, e.g., Hill v. Department of the Army, 

120 M.S.P.R. 340, ¶ 15 (2013) (noting that supervisors are held to a higher 

standard of conduct). 

¶31 Regarding the third factor, the appellant’s past disciplinary record, he 

argues that the administrative judge “ignore[d] whether or not this Factor had any 

bearing on [the deciding official’s] decision.” PFR File, Tab 1 at 12. However, 

an administrative judge’s failure to mention all of the evidence of record does not 

mean that she did not consider it in reaching her decision. Marques v. 

Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 

776 F.2d 1062 (Fed. Cir. 1985) (Table). In any event, we have reviewed the 

record, and we find that the deciding official properly noted the appellant’s lack 

of prior discipline. IAF, Tab 9 at 38.

¶32 Regarding the fourth Douglas factor, the appellant’s past work record, the 

appellant argues that the agency failed to consider his 11 years of prior 

employment with the Federal Bureau of Investigation (FBI). PFR File, Tab 1 at 

12-13; IAF, Tab 9 at 38. We disagree. On the last page of his Douglas factors 

worksheet, the deciding official emphasized the appellant’s “clean disciplinary 

record for 22 years,” a period encompassing his service with the FBI. IAF, Tab 9 

at 43. The appellant also argues that the deciding official did not adequately 

consider his ability to get along with his coworkers. PFR File, Tab 1 at 13. 

Again, we disagree. The record shows that the deciding official considered the 
17

letters of support that the appellant’s coworkers sent. IAF, Tab 9 at 38, Tab 10 at 

27-32, 36-42, 46-48, 51-57, 66.

¶33 Regarding the fifth factor, the effect upon the appellant’s ability to perform 

at a satisfactory level, and upon his supervisor’s confidence in his ability to 

perform, the appellant again argues that the proposing and deciding officials were 

not his supervisors, and therefore their trust and confidence in him are irrelevant. 

PFR File, Tab 1 at 13; IAF, Tab 9 at 38-39. For the reasons explained above, we 

disagree. Supra ¶ 18.

¶34 Regarding the sixth factor, the consistency of the penalty with those 

imposed upon other employees for the same or similar offense, the appellant 

argues that the administrative judge erred in placing the burden on him to show 

that he was treated disparately. PFR File, Tab 1 at 14. This, however, is 

consistent with Board precedent, which requires that the appellant make an initial 

showing of disparate penalty before the burden shifts to the agency to justify the 

apparent disparity. Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, 

¶ 16 (2010). The appellant also argues that another employee, who occupies a 

similar position under the same supervisor, got into an argument with a coworker 

while on duty, in front of others, and called the coworker a “mother f***er” twice 

and used the word “f**k” several more times. PFR File, Tab 1 at 14. Yet this 

employee’s penalty was only to “read the inclusiveness policy.” Id. Assuming 

without deciding that the appellant’s allegations are true, we find that this 

employee’s actions, though improper, are not comparable to the appellant’s; they 

occurred in one discrete incident, whereas the appellant was charged with 

multiple inappropriate communications over the course of several months, thus 

displaying a pattern of repeated misconduct. 6

 See Blow v. Department of the 

Navy, 11 M.S.P.R. 102, 105 (1982) (reasoning that a single, spontaneous incident

of pushing a coworker was not comparable to multiple instances of 

 6 If the record contains any evidence of this comparison employee, we were unable to 

locate it. The petition for review contains no pertinent record citation. 
18

insubordination and threatening to inflict bodily harm). The appellant also cites 

an incident in which another District Ranger under the same supervisor, during 

roughly the same time period, “was charged with sexual harassment of employees 

by distributing condoms to male subordinates on Agency property during work 

hours,” but received only a 3-day suspension. 7

 PFR File, Tab 1 at 15; IAF, Tab 

22 at 23-27. Again, we find that this conduct, although improper, was not 

comparable to the appellant’s because there was only a single occurrence. IAF, 

Tab 22 at 23.

¶35 Regarding factor seven, consistency with the agency’s table of penalties, the 

appellant acknowledges that a 30-day suspension falls within the recommended 

range for a first offense of off-duty misconduct and inappropriate use of 

Government resources. PFR File, Tab 1 at 15; IAF, Tab 9 at 40, Tab 26 at 70-71. 

He argues, however, that the agency inappropriately considered that he was 

engaging in an adulterous affair. PFR File, Tab 1 at 15-16. We agree with the 

appellant that it would be inappropriate for the agency to discipline him for 

“misconduct that is private in nature and that does not implicate job performance 

in any direct and obvious way.” Doe v. Department of Justice, 565 F.3d 1375, 

1380 (Fed. Cir. 2009). However, notwithstanding the agency’s reference to the 

appellant’s “adulterous affair,” IAF, Tab 9 at 40, we find that the agency’s action 

was not based on the affair per se, but rather on the appellant’s associated 

misconduct with a work colleague, which had a demonstrable connection to the

workplace.

¶36 Regarding the eighth Douglas factor, the notoriety of the offense or its 

impact upon the reputation of the agency, the deciding official found that it was 

known among the appellant’s coworkers and some individuals in the local 

 7 Contrary to the appellant’s description, the record shows that this conduct occurred 

during an off-duty going-away celebration, at which the employee in question supplied 

two piñatas filled with candy and condoms. IAF, Tab 22 at 23. This appears to us to 

have been a joke in poor taste, in contrast to the misconduct at issue here, the vast 

majority of which was intended to cause distress.
19

community from whom the appellant solicited letters of support in response to the 

proposed removal. IAF, Tab 9 at 40-41. Notwithstanding, it does not appear to 

us that this incident was publicized, widely known, or otherwise had a significant 

effect on the agency’s reputation. Although the deciding official’s assessment of 

this factor was ambiguous, we agree with the appellant that it was not an 

aggravating factor. PFR File, Tab 1 at 16.

¶37 Regarding the ninth factor, the clarity with which the appellant was on 

notice of any rules that he violated, the deciding official found that, as a District 

Ranger, the appellant should have been aware that his conduct was unacceptable. 

IAF, Tab 9 at 41. He also found that the appellant’s conduct ran counter to the 

annual Prevention of Sexual Harassment training that he received, as well as 

certain agency policies and regulations, and his duties as a District Ranger. Id. 

On review, the appellant argues that he had not received the training and that the 

agency was using this factor to “shoehorn” a sexual harassment allegation into his 

case. PFR File, Tab 1 at 16-17. We read the deciding official’s analysis not as 

accusing the appellant of additional uncharged misconduct but rather as listing 

the various reasons that the appellant should have known that the charged 

misconduct was unacceptable. IAF, Tab 9 at 41. In any event, we find that the 

appellant should have required no special training or instruction to realize that his 

conduct was inappropriate.

¶38 Regarding factor ten, the appellant’s potential for rehabilitation, the 

deciding official acknowledged that the appellant expressed remorse for his 

actions, accepted responsibility, and cooperated with the agency throughout the 

investigation and discipline process. Id. at 42. This was tempered somewhat by 

the appellant’s continued insistence that his communications were private and did 

not implicate his trustworthiness or reliability. Id. The deciding official 

concluded that, although he had lost trust in the appellant’s judgment and ability 

to act professionally, he nevertheless believed, based on the appellant’s 

statements and work history, that he had potential for rehabilitation. Id. On 
20

review, the appellant argues that the proposing and deciding officials failed to 

consider his apology to C.B. and C.B.’s acceptance thereof. PFR File, Tab 1 

at 17-18. We find, however, that, although the deciding official did not discuss 

this matter specifically, he adequately considered the appellant’s statements of 

remorse as a whole and properly considered the appellant’s rehabilitative 

potential to be a mitigating factor. IAF, Tab 9 at 42.

¶39 Regarding factor eleven, mitigating circumstances surrounding the offense, 

the appellant argues that the deciding official failed to consider adequately the 

intense personal difficulties that he was undergoing at the time, including his 

living separately from his wife due to the agency’s broken promise to find a job 

for her nearby, his wife’s being dragged into the acrimonious breakup of the 

affair, the death of the firefighter, and multiple false accusations by agency 

management. PFR File, Tab 1 at 18-20. We find, however, that, apart from the 

“false accusations,” the deciding official considered all of these matters. IAF, 

Tab 9 at 42-43. We therefore disagree with the appellant that the agency 

minimized the difficult personal circumstances that contributed to his misconduct. 

PFR File, Tab 1 at 20.

¶40 Regarding the twelfth and last Douglas factor, the adequacy and 

effectiveness of alternative sanctions, the appellant asserts that the proposing 

official did not thoroughly analyze what alternative sanctions might have been 

appropriate. PFR File, Tab 1 at 20; IAF, Tab 10 at 76. However, 

notwithstanding any lack of analysis by the proposing official, we find that the 

deciding official adequately considered this factor, and it is the adequacy of the 

deciding official’s consideration that is important. IAF, Tab 9 at 43; see Davis v. 

U.S. Postal Service, 120 M.S.P.R. 457, ¶ 6 (2013) (“[I]f the deciding official

failed to appropriately consider the relevant factors, the Board need not defer to 

the agency’s penalty determination.”) (emphasis added). The appellant also 

argues that the agency imposed other penalties against him in addition to the 

suspension, including an involuntary detail, permanent reassignment, 
21

nonselection for promotion, and blackballing from other District Ranger 

positions. PFR File, Tab 1 at 20-21. However, we have not considered these 

matters, because, even if the agency took these actions against the appellant, they 

are not appealable to the Board. 8

 See Maddox v. Merit Systems Protection Board, 

759 F.2d 9, 10 (Fed. Cir. 1985) (finding that a reassignment without loss of grade 

or pay is not an appealable action); Pridgen v. Office of Management and Budget, 

117 M.S.P.R. 665, ¶ 6 (2012) (noting that a nonselection generally is not 

appealable to the Board); Snow v. Department of the Air Force, 39 M.S.P.R. 582, 

584 (1989) (indicating that a temporary detail that does not involve a loss in pay 

or grade is not appealable to the Board).

¶41 For the reasons explained in the initial decision, we agree with the 

administrative judge that the deciding official appropriately considered the 

relevant penalty factors and that his selection of a 30-day suspension was within 

the tolerable limits of reasonableness. ID at 18-21. For the reasons explained 

above, the appellant has not provided an adequate basis to disturb the 

administrative judge’s findings.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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. 

 8 The appellant asserts that he was selected for a final interview for more than 30 

District Ranger positions across the country but that he was not hired due to his 

protected disclosure. PFR File, Tab 1 at 21. Although this matter is not directly 

appealable to the Board, it may form the basis for an individual right of action appeal 

under 5 U.S.C. § 1221, provided that the appellant first exhausts his administrative 

remedies with the Office of Special Counsel under 5 U.S.C. § 1214(a).
22

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 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 Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

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 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, 
23

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.

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 review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or by any court of appeals of competent jurisdiction. The court of 

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

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 United States 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 United States 

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 an appeal to the 

U.S. Court of Appeals for the Federal Circuit, you may visit our website at 
24

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.

______________________________

William D. Spencer

Clerk of the Board