UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2010 MSPB 119 

Docket No. CH-0752-06-0820-I-4 

Adrian M. Crump, 

Appellant, 

v. 

Department of Veterans Affairs, 

Agency. 

June 23, 2010 

Adrian M. Crump, Eagan, Minnesota, pro se. 

C. Charles Caruso, Minneapolis, Minnesota, for the agency. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Anne M. Wagner, Vice Chairman 

Mary M. Rose, Member 

OPINION AND ORDER

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

affirmed his removal for misconduct. For the reasons set forth below, we find 

that the petition does not meet the criteria for review under 5 C.F.R. § 1201.115, 

and we therefore DENY it. However, we REOPEN this appeal on our own 

motion under 5 C.F.R. § 1201.118 to consider the appellant’s arguments on 

review, and AFFIRM the initial decision. 
2

BACKGROUND

¶2 The agency removed the appellant from the position of Cemetery 

Caretaker, effective August 29, 2006, based on three specifications of 

misrepresentation of material fact. Initial Appeal File (IAF), Tab 6, Subtabs 4a, 

4b, 4f. The agency charged the appellant as follows: (1) on September 9, 2005, 

he submitted an Employee Education Data Form and a resume that falsely stated 

that he had earned a master’s degree from Bemidji State University; (2) on 

October 24, 2005, he submitted a memorandum that falsely stated that he had 

been seen at the Health Partners Riverside Clinic during his absence of 

October 20-21, 2005; and, (3) on October 11, 2005, he submitted a letter, 

allegedly signed by a then-retired Navy Admiral, that falsely stated that he was 

on military duty from October 8-17, 2005. IAF, Tab 6, Subtab 4(f). 

¶3 The appellant appealed the agency’s action. IAF, Tab 1. The 

administrative judge dismissed the appeal without prejudice pending resolution of 

a criminal matter related to specification 3 of the charge, the appellant’s alleged 

misrepresentation of time spent on military duty. IAF, Tab 12. The appellant 

refiled the appeal twice during the pendency of the criminal matter, and the 

administrative judge dismissed the appeal each time because of the ongoing 

criminal proceedings. IAF2, Tab 5; IAF3, Tab 9. At the conclusion of the 

criminal proceedings, the appellant again refiled his appeal. IAF4, Tab 1. 

¶4 Based on the record developed by the parties, including the testimony at 

the hearing, the administrative judge sustained the agency’s charge and 

specifications, found that the appellant failed to prove that the agency removed 

him in retaliation for his protected activity, determined that the penalty was 

within the bounds of reasonableness for the sustained offense, and affirmed the 

agency’s action. IAF4, Tab 33. 

¶5 The appellant petitions for review. Petition for Review File (PFR File), 

Tab 1. The agency has responded in opposition to the petition. PFR File, Tab 3. 
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ANALYSIS

¶6 In his petition, the appellant asserts that the administrative judge erred in 

relying on his failure to rebut the agency case to sustain the charges. We do not 

agree. To sustain a falsification charge, an agency must prove by preponderant 

evidence that the appellant knowingly supplied incorrect information with the 

intention of defrauding, deceiving or misleading the agency. Naekel v. 

Department of Transportation, 782 F.2d 975, 977 (Fed. Cir. 1986); Seas v. U.S. 

Postal Service, 73 M.S.P.R. 422, 427 (1997). Intent is a state of mind, which is 

generally proven by circumstantial evidence. Riggin v. Department of Health & 

Human Services, 13 M.S.P.R. 50, 52 (1982). Thus, the Board may consider 

plausible explanations for an appellant’s provision of incorrect information in 

determining whether the misrepresentation was intentional. See Nelson v. U.S. 

Postal Service, 79 M.S.P.R. 314, ¶ 7 (1998). Likewise, the absence of a credible 

explanation for the misrepresentation can constitute circumstantial evidence of 

intent to deceive. Id. Intent may also be inferred when an appellant makes a 

misrepresentation with a reckless disregard for the truth or with a conscious 

purpose to avoid learning the truth. Id. In sum, the Board will examine the 

totality of the circumstances to determine whether the agency has proven intent to 

defraud, deceive, or mislead. See Delancy v. U.S. Postal Service, 88 M.S.P.R. 

129, ¶ 4 (2001). 

¶7 Here, the agency submitted evidence to show that the appellant provided 

incorrect information. With regard to specification 1 of the charge, the agency 

submitted evidence to show that the appellant had falsified his educational 

information. Specifically it introduced evidence that the appellant would have 

been classified as a freshman at Bemidji State University and did not possess a 

master’s degree from that institution. IAF4, Tab 16, exhibit 1. The appellant 

failed to rebut this showing either with evidence that he did, in fact, have a 

master’s degree from Bemidji State University or with evidence to explain why 

he misrepresented that he did. In assessing the totality of the circumstances, the 
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administrative judge properly determined that the appellant falsified his 

educational background with intent to deceive. See Nelson, 79 M.S.P.R. 314, ¶ 7. 

¶8 As to the second specification, the agency provided the testimony of 

Dorene Krenn, an employee of the Health Partners Riverside Clinic, regarding the 

memorandum that the appellant supplied stating that a nurse at the clinic had seen 

him on October 20-21, 2005. IAF4, Oct. 8 Hearing Transcript (HT) at 10-15. 

Krenn testified that the memorandum is inconsistent with the clinic’s 

documentation procedures for a number of reasons, including that the medical 

record number on the memorandum looks like a social security number and the 

clinic does not use social security numbers to identify patients. Id. at 13. The 

appellant could have rebutted this testimony either with evidence showing that 

the memorandum was a true and accurate medical record or with evidence 

explaining why he mistakenly thought that it was. He failed to do so. Based on 

the totality of the evidence, the administrative judge properly found that the 

appellant falsified this medical record with the intent to deceive. See Nelson, 79 

M.S.P.R. 314, ¶ 7. 

¶9 With regard to specification 3 of the charge, the appellant conceded that he 

was not an active naval reservist in the period of October 8-17, 2005, but 

nonetheless requested military leave for that period. IAF4, Oct. 22 HT at 171-76. 

The appellant failed to provide any plausible explanation or justification for his 

request for military leave in October 2005. Id. Accordingly, the administrative 

judge properly concluded that the appellant knowingly supplied false information 

to substantiate his military leave request with the intent to deceive or mislead. 

¶10 In his petition, the appellant also asserts that the administrative judge erred 

in failing to take into consideration the injury that resulted in his OWCP claim. 

He contends that the administrative judge erred in failing to find that the agency 

removed him in retaliation for filing this claim. PFR File, Tab 1 at 4-5. Title 5 

U.S.C. § 2302(b)(9) prohibits any employee who has the authority to take, direct 

others to take, recommend, or approve any personnel action, to take any 
5

personnel action against any employee “because of[] (A) the exercise of any 

appeal, complaint, or grievance right granted by any law, rule or regulation; [or] 

(B) testifying for or otherwise lawfully assisting any individual in the exercise of 

any right referred to in subparagraph (A) . . . .” To establish a prima facie 

violation of subsection (b)(9), the appellant must demonstrate that he engaged in 

an activity protected by the section; that he was subsequently treated in an 

adverse fashion by the employer; that the deciding official had actual or 

constructive knowledge of the protected activity; and that there is a causal 

connection between the protected activity and the adverse action. Wildeman v. 

Department of the Air Force, 23 M.S.P.R. 313, 320 (1984). Where, as here, the 

agency has already articulated a non-discriminatory reason for its action, i.e., the 

charged misconduct, it has done everything that would be required of it if the 

appellant had made out a prima facie case. U.S. Postal Service Board of 

Governors v. Aikens, 460 U.S. 711, 715 (1983). Thus, the inquiry proceeds 

directly to the ultimate question of whether, upon weighing all of the evidence, 

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

¶11 Specifically, the question to be resolved is whether the appellant has 

produced sufficient evidence to show that the agency's proffered reason for taking 

the action was not the actual reason and that the agency intentionally 

discriminated or retaliated against him. St. Mary's Honor Center v. Hicks, 509 

U.S. 502, 507-08 (1993); Aikens, 460 U.S. at 714-16; Brady v. Office of Sergeant 

at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). The evidence to be considered at 

this stage may include: (1) the elements of the prima facie case; (2) any evidence 

the employee presents to attack the employer's proffered explanations for its 

actions; and (3) any further evidence of discrimination or retaliation that may be 

available to the employee, such as independent evidence of discriminatory 

statements or attitudes on the part of the employer, or any contrary evidence that 

may be available to the employer. Aka v. Washington Hospital Center, 156 F.3d 

1284, 1289 (D.C. Cir. 1998) (en banc). 
6

¶12 The Board may consider circumstantial evidence in determining whether an 

appellant has met his burden. Wildeman, 23 M.S.P.R. at 320. To show 

retaliation using circumstantial evidence, the appellant must show that the 

accused official knew of the protected activity, cf. Warren v. Department of the 

Army, 804 F.2d 654, 656 (Fed. Cir. 1986), and provide evidence showing a 

“‘convincing mosaic’” of retaliation against him, by which a number of pieces of 

evidence, “‘each of which supports a proposition only weakly can, when taken as 

a whole, provide strong support if all point in the same direction....’” FitzGerald 

v. Department of Homeland Security, 107 M.S.P.R. 666, ¶ 20 (2008) (quoting 

Sylvester v. SOS Children’s Villages Illinois, Inc. 453 F.3d 900, 903 (7th Cir. 

2006)). This mosaic generally includes three types of evidence: (1) evidence 

from which an inference of retaliatory intent might be drawn, such as suspicious 

timing or similar behavior and comments directed at other employees in the 

protected groups; (2) evidence that similarly situated employees received more 

favorable treatment than the appellant; and (3) evidence that the reason asserted 

by the employer for its actions is pretextual. Id. 

¶13 Here, the record shows that the agency proposed the appellant’s removal on 

July 24, 2006, the day that he returned to a light-duty assignment following an 

on-the-job injury. IAF4, Tab 30, exhibit A. At first blush, this evidence suggests 

possibly suspicious timing between his OWCP claim and his removal. However, 

as the administrative judge noted, the appellant resigned from his position after 

the on-the-job injury occurred in November, 2005. IAF4, Tab 33 at 10. The 

Cemetery Director, Arthur Smith, testified that the agency proposed to remove 

the appellant upon his return to duty because, prior to that, he was not an 

employee of the agency and, therefore, not subject to disciplinary action by it. 

IAF4, Oct. 22 HT at 108, 121-23. Additionally, the record shows that, in 

October 2005, prior to the appellant’s on-the-job injury, Smith had initiated an 

investigation into whether the appellant was posing as a Navy Officer in order to 

receive and use military leave to which the appellant was not entitled. IAF4, Tab 
7

16, exhibit 4. Thus, the timing between the appellant’s OWCP claim and the 

agency’s adverse action does not give rise to an inference of discrimination. The 

appellant presented no evidence that similarly-situated employees were treated 

better and no evidence that the agency’s stated reason for its action was 

pretextual. Thus, the administrative judge correctly found that the appellant 

failed to show that the agency removed him in retaliation for his protected 

activity. 

¶14 Finally, in his petition, the appellant appears to claim that the 

administrative judge did not permit him to address his alleged post-traumatic 

stress disorder (PTSD) and its role in his misconduct. PFR, Tab 1 at 3. The 

record, however, does not support the appellant’s assertion. On the contrary, the 

appellant alluded to a diagnosis of PTSD “or mental health issues” during his 

testimony. See IAF4, Oct. 22 HT at 167-89. The record reflects that the 

administrative judge did not limit the appellant’s testimony about his PTSD. 

Conversely, the appellant did not produce any other evidence that he was 

diagnosed with PTSD; nor did he demonstrate how this condition played a part in 

his misconduct. Therefore, the appellant has not shown that his mental condition 

should have been taken into consideration in this case. 

¶15 Accordingly, the appellant has failed to show on review that the 

administrative judge made any error in law or regulation in adjudicating this 

appeal. Therefore, we AFFIRM the initial decision. 

ORDER

¶16 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 
8

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court of Appeals for the 

Federal Circuit to review this final decision. You must submit your request to the 

court at the following address: 

United States Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, DC 20439 

The court must receive your request for review no later than 60 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 court 

no later than 60 calendar days after receipt by your representative. If you choose 

to file, be very careful to file on time. The court has held that normally it does 

not have the authority to waive this statutory deadline and that filings that do not 

comply with the deadline must be dismissed. See Pinat v. Office of Personnel 

Management, 931 F.2d 1544 (Fed. Cir. 1991). 

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). You may read 

this law, as well as review the Board’s regulations and other related material, at 

our website, http://www.mspb.gov. Additional information is available at the 

court's website, www.cafc.uscourts.gov. Of particular relevance is the court's 
9

"Guide for Pro Se Petitioners and Appellants," which is contained within the 

court's Rules of Practice, and Forms 5, 6, and 11. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.