UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2010 MSPB 89 

 Docket No. CB-1215-08-0014-T-1 

 CB-1215-08-0015-T-1 

Special Counsel, 

Petitioner, 

v. 

Richard F. Lee, 

Diane L. Beatrez, 

Respondents. 

May 14, 2010 

Anne M. Gullick, Esquire, and Joan Marshall, Esquire, Dallas, Texas, for 

the petitioner. 

Lorna Jerome, Esquire, Washington, D.C., for respondent Richard F. Lee. 

Robert Bruce, Esquire, Washington, D.C., for respondent Diane L. Beatrez. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Anne M. Wagner, Vice Chairman 

Mary M. Rose, Member 

Vice Chairman Wagner issues a separate, concurring opinion. 

OPINION AND ORDER

¶1 These cases arise from complaints filed by the Special Counsel under the 

Special Counsel’s authority to investigate allegations of prohibited personnel 

practices. See 5 U.S.C. §§ 1214-1215. The Special Counsel asks the Board to 

review the initial decision of the administrative law judge dismissing the Special 
2

Counsel’s complaints against the respondents for violating 5 U.S.C. § 2302(b)(6) 

by granting a preference or advantage to an employee of the U.S. Coast Guard, 

improving his prospects for obtaining a promotion. For the reasons set forth 

below, we GRANT the petition for review under 5 C.F.R. § 1201.115, REVERSE 

the initial decision, and find that the respondents committed a prohibited 

personnel practice that warrants discipline. 

BACKGROUND

¶2 On May 22, 2008, the Board received a complaint seeking disciplinary 

action against Richard F. Lee. Lee Complaint File (LCF), Tab 1. On May 30, 

2008, the Board received a complaint seeking disciplinary action against Diane L. 

Beatrez. Beatrez Complaint File (BCF), Tab 1. The Special Counsel charged 

both Beatrez and Lee, in their roles as Human Resources (HR) Specialists for the 

U.S. Coast Guard, with one count each of violating 5 U.S.C. § 2302(b)(6) by 

granting a preference or advantage to Coast Guard Senior Legal Instrument 

Examiner Eric Woodson for the purpose of improving his prospects of obtaining a 

promotion to a supervisory position.1

 BCF, Tab 1 at 3; LCF, Tab 1 at 3. After a 

two-day hearing, in which the administrative law judge took testimony from 

several witnesses, and after the parties submitted closing briefs, the 

administrative law judge found that neither Beatrez nor Lee had committed any 

prohibited personnel practice in violation of 5 U.S.C. § 2302(b)(6), and he 

dismissed the complaints against both respondents. Initial Decision (ID) at 1-16. 

¶3 The Special Counsel has filed a petition for review. Petition for Review 

File (PFR File), Tab 1. The respondents have filed responses. PFR File, Tabs 

3-4. 

 

1

 The administrative law judge found that the record does not show that Woodson 

sought any preferential treatment or otherwise behaved improperly, Initial Decision at 2 

n.1, and the Special Counsel did not file a complaint against him. 
3

ANALYSIS

Governing Law

¶4 Section 2302(b)(6) of title 5 states: 

Any employee who has authority to take, direct others to take, 

recommend, or approve any personnel action, shall not, with respect 

to such authority . . . grant any preference or advantage not 

authorized by law, rule, or regulation to any employee or applicant 

for employment (including defining the scope or manner of 

competition or the requirements for any position) for the purpose of 

improving or injuring the prospects of any particular person for 

employment . . . . 

¶5 To establish a violation of 5 U.S.C. § 2302(b)(6), Board case law requires 

that the Special Counsel establish an intentional or purposeful taking of a 

personnel action in such a way as to give a preference to a particular individual 

for the purposes of improving his prospects. Special Counsel v. Byrd, 

59 M.S.P.R. 561, 570 (1993), aff’d, 39 F.3d 1196 (Fed. Cir. 1994) (Table). This 

standard is consistent with the plain text of the statute, which specifies that the 

preference must be given “for the purpose of” providing the improper advantage. 

5 U.S.C. § 2302(b)(6). It is the preference itself that is prohibited and not the 

type of action used in granting the preference. Byrd, 59 M.S.P.R. at 570. In 

other words, it is possible to violate section 2302(b)(6) using hiring authority and 

recruitment vehicles that would be acceptable under other circumstances. The 

Special Counsel bears the burden of proving that a respondent has violated 

section 2302(b)(6), and the Special Counsel must do so by preponderant evidence. 

Special Counsel v. Cummings, 20 M.S.P.R. 625, 632 (1984); 5 C.F.R. 

§ 1201.56(a)(1)(ii). 

Common Facts

¶6 The events in controversy took place at the U.S. Coast Guard Regional 

Examination Center (REC) in Los Angeles, California, and at Coast Guard 

Headquarters in Washington, D.C. On or about January 1, 2004, the Supervisory 

Merchant Marine Evaluation Specialist, GS-1801-11, at the REC retired. Hearing 
4

Transcript (HT) at 284-85 (testimony of Commander (CMDR) Laura O’Hare). 

After being informed of the retirement, CMDR O’Hare, Chief of the REC, 

contacted the Coast Guard’s Civilian Personnel Office in Washington, D.C., and 

requested assistance in filling the position. LCF, Tab 1 at 3; BCF, Tab 1 at 3; HT 

at 295 (testimony of O’Hare). The appointee would be responsible for highly 

specialized work overseeing merchant mariner classes, evaluating merchant 

mariners for a variety of levels of credentialing and licensing, and supervising the 

lower graded civilian employees in the office. HT at 205, 290-92, 359 (testimony 

of Lee, O’Hare, Woodson). 

¶7 The REC had both civilian employees and uniformed personnel. Woodson 

served as the Senior Legal Instrument Examiner, GS-6986-08, at the REC. HT, 

Ex. 10A at 6. Additionally, there were three Legal Instrument Examiners, GS-07, 

and one Cashier, GS-05. HT at 358 (testimony of Woodson). After the 

Supervisory Merchant Marine Evaluation Specialist at the REC retired, Woodson 

was assigned some of his duties, but he was not formally detailed to that GS-11 

position. HT at 244, 360-61, 363-64 (testimony of Lee, Woodson). 

¶8 The Coast Guard issued parallel vacancy announcements on January 20, 

2004: a delegated examining unit (DEU) announcement that was open to all 

qualified U.S. citizens; and a merit promotion announcement open to “status 

eligibles.” HT, Ex. 4A at 1, 4. Both announcements sought candidates for the 

GS-11 level only, id., even though limiting consideration to a single grade level 

would have generally excluded applicants below the GS-09 level, unless the 

individual could qualify via education or a combination of education and 

experience, HT at 65 (testimony of Jean House, an HR Specialist in the West 

Branch of the Civilian Personnel Office in Washington, D.C., who was handling 

the recruitment action prior to Beatrez), HT, Ex. 4A at 1, 4. 

¶9 Woodson applied under the merit promotion announcement but was not 

referred because, as a GS-8 employee, he was ineligible for promotion to GS-11. 

LCF, Tab 1 at 3-4; HT at 64-65, 307 (testimony of House, O’Hare). CMDR 
5

O’Hare contacted Lee, an HR Specialist who serves as the Command Staff 

Advisor in the field for Coast Guard facilities in California, to inquire as to why 

Woodson had not been referred. HT at 306-07 (testimony of O’Hare). CMDR 

O’Hare then requested via email that HR “reopen” the DEU announcement and 

create a new list for referral. HT at 307-08 (testimony of O’Hare), id., Ex. 6. 

Lee forwarded the request to House. HT at 37, 40-43 (testimony of House), id., 

Ex. 6. Lee’s email stated: “Can we open the D1 [DEU] announcement? Eric 

Woodson, an employee there applied under MP was rated ineligible because of 

time in grade. He should have applied under competitive.” Id., Ex. 6. Lee 

testified that CMDR O’Hare specifically wanted to reopen the DEU list so that 

Woodson’s nongovernmental experience could be considered. HT at 200, 225. 

On March 1, 2004, House instructed Lee to “have Commander O’Hare talk about 

lack of adequate candidates[.]” HT at 79 (testimony of House). The DEU 

referral certificate bears a handwritten annotation by CMDR O’Hare, stating that 

she wanted to re-advertise the job “[b]ecause of a lack of sufficient, wellqualified candidates[.]” HT, Ex. 4A at 7. 

¶10 The vacancy was opened a second time, using both merit promotion and 

DEU announcements, on March 4, 2004. HT, Ex. 7A at 1, 5. The second set of 

vacancy announcements, however, did not differ in substance from the first set, 

and the position was advertised only at the GS-11 level. Compare id. and HT, 

Ex. 4A at 1-8. 

¶11 By the time that the second set of vacancy announcements closed, the 

staffing assignment for this action had been transferred to Beatrez, who, like 

House, was also an HR Specialist based in Washington, D.C. HT at 84, 135 

(testimony of House, Beatrez). On April 2, 2004, Beatrez notified Lee via email 

that she had been told “the reason the job was re-advertised was to try and reach 

Mr. Woodson.” HT, Ex. 8 at 2. Beatrez then explained that she was unable to 

qualify Woodson at the GS-11 level, and asked if Lee wanted the qualified 

applicants incorporated with those found qualified under the first set of vacancy 
6

announcements. Id. On April 5, 2004, Lee notified CMDR O’Hare: “They did 

not find [Woodson] qualified for the position based on his resume and how he 

responded to the KSAs. My recommendation if you want to [consider] him is to 

cancel and advertise the position as a GS-9 with potential to GS-11.” Id. On 

May 17, 2004, CMDR O’Hare notified Lee via email that she wanted the position 

re-announced as a “GS-9/11 to expand the pool of qualified applicants with 

specific licensing experience. Please limit the solicitation to all current and 

former federal employees, and limit to LA/LB [Los Angeles/Long Beach] local 

area.” HT, Ex. 9. CMDR O’Hare also instructed Lee to advertise the vacancy 

“for the minimum amount of time.” Id. That same day, Lee passed the request on 

to Beatrez, stating that she should re-announce the position as a GS-09/11 merit 

promotion vacancy with the area of consideration limited to the Los Angeles 

commuting area. Id. The position was re-announced on May 20, 2004, as merit 

promotion only in the local commuting area, and the announcement closed on 

May 28, 2004. HT, Ex. 10B. 

¶12 On June 17, 2004, CMDR Christopher Hogan relieved CMDR O’Hare as the 

Chief of the REC. HT at 254-55 (testimony of Hogan). CMDR Hogan conducted 

interviews and selected Woodson for the position based upon the referral list, 

which now included his name. HT at 256-57 (testimony of Hogan). CMDRS 

Hogan and O’Hare, and one other individual, comprised the interview panel. Id. 

at 256. 

¶13 The administrative law judge organized his analysis of the respondents’ 

activities into three sets of events. ID at 7. The first event involved the decision 

to re-advertise the vacancy after the first set of vacancy announcements closed. 

This event occurred prior to Beatrez’s involvement and pertained only to Lee. Id. 

The second event involved the cancellation of the second set of vacancy 

announcements. Both respondents were involved at that point. Id. The third 

event was the decision to issue a third vacancy announcement, with the position 

redesignated as a GS-09/11. Again, both respondents were involved. Id. 
7

The Decision to Re-Advertise after the First Set of Vacancy Announcements

¶14 The Special Counsel alleges that the transactions between Lee and O’Hare 

and Lee and House show that Lee granted a preference or advantage to Woodson 

when he assisted CMDR O’Hare in her request to re-advertise the position after 

the first set of vacancy announcements. LCF, Tab 18 at 3-5, 9-10. The 

administrative law judge found that the timing of the email exchange might have 

created the appearance that Lee was advising CMDR O’Hare on how to create a 

pretext for re-announcing the position, but he credited CMDR O’Hare’s testimony 

regarding her own motivations, which he found supported a different conclusion: 

CMDR O’Hare’s initial failure to understand the complexities of the federal 

personnel system caused her to be confused as to the best way in which to 

structure an announcement that would capture candidates with the most relevant 

experience. ID at 13-14. CMDR O’Hare had testified that when she first sought 

to fill the position, she had only a limited understanding of how the civilian 

personnel hiring system worked, and the various types of hiring authority that 

were available. HT at 311-12. The administrative law judge found that the 

Special Counsel failed to establish by preponderant evidence that Lee had any 

reason to consider CMDR O’Hare’s request as pretextual. ID at 14. 

The Decision to Cancel the Second Set of Vacancy Announcements

¶15 The Special Counsel alleges that the transactions between Lee and Beatrez 

and Lee and CMDR O’Hare show that Lee and Beatrez helped CMDR O’Hare 

grant an illegal preference by defining the scope and manner of competition for 

the position when they cancelled the second vacancy announcement without 

rating, ranking or referring the candidates who applied. BCF, Tab 21 at 10-11; 

LCF, Tab 18 at 10-11. The administrative law judge, however, relied on Lee’s 

testimony that he could recall telephone conversations with CMDR O’Hare that 

took place at this stage of the recruitment action, during which they discussed a 

need for a larger pool of candidates, including persons from other Coast Guard 

RECs. ID at 15; see HT at 204-10. He likewise relied upon the testimony of 
8

Richard Kogut, Chief of Civilian Personnel for the Coast Guard at the time of the 

action. ID at 8. The administrative law judge found that, while the email 

messages would certainly have aroused suspicions, the second set of vacancy 

announcements was cancelled for lack of sufficient qualified candidates in the 

selection pool. Id. at 9, 14-15; see HT at 380 (testimony of Kogut). The 

administrative law judge found that this was a legitimate reason for canceling the 

announcements and the true motive for re-announcing the vacancy later. ID at 8. 

¶16 The administrative law judge also pointed out that Beatrez had testified 

without any challenge from the Special Counsel that when she “saw that there 

were just a limited number of applicants, most of which were applicants under the 

D1 or open competitive announcement, [she] made an assessment that the 

position was advertised in error” and canceled the second set of vacancy 

announcements. ID at 9-10; see HT at 153. Beatrez testified that the second set 

of vacancy announcements generated only one new applicant on the merit 

promotion list, and five new applicants on the DEU list. HT at 154. She 

explained that the number of applicants generated “wasn’t going to meet 

[management’s] need to have more names because under open competitive 

procedures, management is limited to the top three scored applicants.” 

HT at 155. The administrative law judge reasoned that, given that the first and 

second sets of announcements were substantially the same, the failure of the 

second set of announcements to generate an adequate pool of applicants was not 

surprising. ID at 11, 14; compare HT, Ex. 4A at 1-6, with id., Exhibit 7A at 1-8. 

He found that the first and second set of announcements would have been 

unlikely to have met the alleged illegitimate motive of granting a preference to 

Woodson, as well as ineffective with regard to the legitimate goal of attracting a 

larger pool of qualified candidates. ID at 11. The only correct thing to do, he 

concluded, was to re-announce the position as a GS-9/11, though the Coast Guard 

“could have been saved a great deal of effort, and avoided the appearance of 

impropriety . . . if they had simply done the proper thing sooner.” Id. 
9

The Decision to Issue a Third Vacancy Announcement

¶17 As for the third vacancy announcement, the Special Counsel identifies a 

number of factors that could lead to the conclusion that Beatrez and Lee helped 

confer an illegal preference upon Woodson. The Special Counsel points to 

Beatrez’s testimony that the announcement would “expand the area of 

consideration, to give management more applicants to consider, and to also 

consider – allow them to consider Mr. Woodson, hoping that he would be 

qualified,” as well as CMDR O’Hare’s admission that the changes in the third 

vacancy announcement allowed Woodson to qualify. BCF, Tab 21 at 6; see HT at 

159, 335-36 (testimony of Beatrez, O’Hare). The Special Counsel additionally 

points to the email exchange between Lee and CMDR O’Hare regarding the 

parameters for the third vacancy announcement. LCF, Tab 18 at 12. The Special 

Counsel likewise notes the geographical limitations adopted for the third 

announcement and the brief period for which it was open. LCF, Tab 18 at 6; 

BCF, Tab 21 at 6. 

¶18 The administrative law judge, however, found that it was reasonable for the 

Coast Guard to restyle the position for both GS-09 and GS-11 applicants and reannounce the vacancy again, given that the second set of vacancy announcements 

would not have captured any GS-07 and GS-08 internal employee, even such an 

employee with applicable specialized experience. ID at 11. The administrative 

law judge pointed to testimony from Beatrez that the second set of 

announcements had been erroneous in light of the results produced by the first 

set. ID at 11; see HT at 155-56. The administrative law judge also noted Lee’s 

testimony that the second set of announcements would not have generated “any 

highly qualified candidates with the specific experience . . . because the nature of 

the work is inherently Government Coast Guard.” ID at 11; see HT at 203. 

¶19 In reaching all of these findings, the administrative law judge gave 

particular credit to the Coast Guard’s official position that the respondents had 

done nothing improper, which was conveyed via Kogut’s testimony and that of 
10

Cynthia Nelson-Possinger, Beatrez’s second-level supervisor at the time. ID at 

11; see HT at 390-91, 433-37. The administrative law judge also considered 

Lee’s testimony regarding the importance of internal promotion opportunities in 

sustaining employee morale, see HT at 229-31, and that of Kogut, who testified 

that “probably . . . between 40 and 60 percent” of positions in the agency are 

designed as developmental positions to “be able to give internal candidates the 

opportunity to career ladder up, to get promoted internally,” ID at 16; HT at 383. 

He thus credited Lee’s testimony that he believed CMDR O’Hare was not just 

trying to reach Woodson but was seeking to consider internal candidates who may 

have had qualifications similar to those of Woodson. ID at 15-16; see HT at 235. 

The Special Counsel’s Arguments on Review

¶20 Most of the Special Counsel’s arguments on review pertain to the findings 

of fact. The Special Counsel argues that the administrative law judge “neglected 

to consider or address all the crucial facts, testimony and evidence contained in 

the record.” PFR File, Tab 1 at 1. 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. Weaver v. Department of the Navy, 2 M.S.P.R. 

129, 133 (1980), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam). The 

petition for review must be sufficiently specific to enable the Board to ascertain 

whether there is a serious evidentiary challenge justifying a complete review of 

the record. Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92 (1992). 

¶21 Whether the respondents violated 5 U.S.C. § 2302(b)(6) turns on whether 

they intended to afford preferential treatment to Woodson. See Byrd, 59 M.S.P.R. 

at 570. It is not the action itself that violates the law, but, instead, the intent 

behind the action. See id. Legally permissible actions, such as canceling a 

vacancy announcement or selecting one specific type of hiring authority over 

another, can be used for an illegal purpose if the intent is to afford preferential 

treatment to an individual. The same actions, however, would be entirely 
11

permissible absent any intent to afford preferential treatment to an individual, 

even if the actions taken by the agency for valid reasons had the unintentional 

effect of favoring one applicant over the others. See id.; see also Abell v. 

Department of the Navy, 343 F.3d 1378, 1383-84 (Fed. Cir. 2003) (“An agency 

has discretion to cancel a vacancy announcement”), citing, Scharein v. 

Department of the Army, 91 M.S.P.R. 329, 339 (2002), aff’d, No. 02-3270 (Fed. 

Cir. Jan. 10, 2003). 

¶22 The administrative law judge’s analysis of intent here rests largely on 

credibility determinations made from the testimony of the respondents and their 

managers. Normally, the Board must defer to the credibility determinations of an 

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

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

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

witnesses and determine which witnesses were testifying credibly. Haebe v. 

Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002); Smith v. 

Department of Veterans Affairs, 93 M.S.P.R. 424, ¶ 4 (2003). Conversely, the 

Board may substitute its own determinations of fact for those of an administrative 

judge, even where his credibility findings are based in part on demeanor 

evidence, if the Board can articulate a sound reason, based on the record, for a 

contrary evaluation of the evidence. Haebe, 288 F.3d at 1300; Dogar v. 

Department of Defense, 95 M.S.P.R. 527, ¶ 4 (2004) (“Although we seldom 

exercise this prerogative, we could not ignore in the case before us the serious 

inconsistencies between the appellant’s account and the documentary evidence, 

including the findings of the agency’s extensive investigation.”), aff’d, 128 F. 

App’x 156 (Fed. Cir. 2005). The Board may overturn credibility determinations 

when the findings are incomplete, inconsistent with the weight of the evidence, 

and do not reflect the record as a whole. Faucher v. Department of the Air Force, 

96 M.S.P.R. 203, ¶ 8 (2004); see, e.g., Wallace v. Department of Commerce, 106 

M.S.P.R. 23, ¶¶ 14-16 (2007) (finding that the administrative judge failed to 
12

consider conflicting evidence); Velez v. Department of Homeland Security, 101 

M.S.P.R. 650, ¶ 18 (2006) (finding that the appellant’s purported exculpatory 

explanation was not only contradicted by the undisputed evidence, it was 

inconsistent with the appellant’s and a subordinate employee’s previous sworn 

statements, and it was also inconsistent with the record evidence as a whole), 

aff’d, 219 F. App’x 990 (Fed. Cir. 2007); Moore v. Equal Employment 

Opportunity Commission, 97 M.S.P.R. 684, ¶ 12 (2004) (rejecting the 

administrative judge’s credibility determination in favor of the testimony of one 

agency witness, where the testimony conflicted with sworn statements by three 

impartial witnesses supporting the appellant’s account of events). 

¶23 Here, the administrative law judge did not ignore the evidence that would 

support a finding of preferential treatment, and indeed he acknowledged several 

times that some of their actions might imply or create the appearance of 

wrongdoing. E.g., ID at 4-5, 8-9, 11-13. His findings and credibility 

determinations are nevertheless inconsistent with the weight of the documentary 

evidence and do not reflect the record as a whole. It is our view that the 

administrative law judge gave a sizable body of particularly telling circumstantial 

evidence too little weight in favor of some direct testimony that was inconsistent 

with that body of evidence. As a result, he explained away serious contradictions 

between the testimony and the other less favorable evidence in the record, 

crafting an improbable account of the events leading up to Woodson’s 

appointment to the vacant position. See Hillen v. Department of the Army, 

35 M.S.P.R. 453, 458 (1987) (factors for assessment of credibility include the 

contradiction of the witness’s version of events by other evidence or its 

consistency with other evidence, and the inherent improbability of the witness’s 

version of events). For example, with regard to Beatrez’s cancellation of the 

second set of vacancy announcements, the administrative law judge found: 

[The Special Counsel] entered into evidence an email from Mr. Lee 

to CMDR O’Hare dated April 5, 2004 in which Mr. Lee stated: 
13

“They did not find [Woodson] qualified for the position based on his 

resume and how he responded to the KSAs. My recommendation if 

you want to conisder [sic] him is to cancel and advertise the position 

as a GS-9 with potential to GS-11.” HT, Exhibit 8. Viewed in 

isolation, [the Special Counsel’s] attention might understandably be 

caught by those statements. However, a lack of sufficient qualified 

candidates in the pool is a legitimate reason for cancelling a vacancy 

announcement. HT at 380, Testimony of Kogut. I believe this was 

the true motive for the re-announcement. 

ID at 9. As for Lee’s communication to CMDR O’Hare of advice from House 

regarding the second set of vacancy announcements, the administrative law judge 

explained: 

 On March 1, 2004, the staffing specialist working on the 

recruitment action, Ms. Jean House, instructed Mr. Lee to . . . “have 

Commander O’Hare talk about lack of adequate candidates[.]” HT at 

79. In a handwritten note to Mr. Lee on that same date, written on a 

DEU certificate of names, CMDR O’Hare stated she wanted to readvertise the job “[b]ecause of a lack of sufficient, well-qualified 

candidates[.]” HT, Exhibit 4a at 7. 

 It is understandable that this prompting may have looked to [the 

Special Counsel] like HR advising a manager on how to create a 

pretext for a new announcement weeks after the decision was already 

made to re-announce the position. However, Federal human 

resources laws and regulations can be rather complex, and managers, 

particularly those in the military, may not have a firm understanding 

of how those regulations work. CMDR O’Hare admitted that she had 

only a limited understanding of how the civilian personnel hiring 

system worked and “was confused about it.” HT at 311-312, 

Testimony of O’Hare. 

ID at 13-14. 

¶24 An agency may rely upon proper circumstantial evidence to establish intent. 

Naekel v. Department of Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986); 

Delessio v. U.S. Postal Service, 33 M.S.P.R. 517, 519, aff’d, 837 F.2d 1096 (Fed. 

Cir. 1987) (Table). The inferences that may be drawn from such evidence depend 

upon the strength of the evidence. Delessio, 33 M.S.P.R. at 519. Where proof of 

intent must be inferred from circumstantial evidence, no per se evidentiary rule 

applies and all of the evidence must be considered. Naekel, 782 F.2d at 979; 
14

Delessio, 33 M.S.P.R. at 519. Even where an administrative judge has made 

credibility determinations pursuant to Hillen, the Board may on review resolve 

the question of intent from the totality of the evidence, applying the 

preponderance of the evidence standard. See, e.g., Johnson v. Department of the 

Army, 48 M.S.P.R. 54, 57-58 (1991), aff’d, 960 F.2d 156 (Fed. Cir. 1992) 

(Table); Delessio, 33 M.S.P.R. at 519-21. 

¶25 The record includes a fairly significant paper trail of email messages 

described above, which were written or received by CMDR O’Hare, Lee and 

Beatrez, and which clearly document CMDR O’Hare’s desire to select Woodson 

for the position. HT, Exs. 6, 8, 9; see also id., Ex. 4A at 7. When we consider 

the totality of the evidence, we find that these messages, together with some of 

the material testimony, persuasively show that CMDR O’Hare was indeed seeking 

to grant Woodson a preference not authorized by law, rule, or regulation. CMDR 

O’Hare’s email messages specifically identify Woodson and no other potential 

candidate for the vacant position. See, e.g., HT at 200-01, 225 (testimony of 

Lee); id., Ex. 8 at 1-2, 9. Between these blatant references to Woodson, and the 

documentation and direct testimony regarding the assistance forthcoming from 

the respondents, a pattern of cooperation between the respondents and CMDR 

O’Hare emerges in support of CMDR O’Hare’s efforts to grant an illegal 

preference to Woodson. 

¶26 For instance, after CMDR O’Hare declined to interview any of the seven 

best-qualified candidates referred to her under the first set of vacancy 

announcements, she emailed Lee and specifically asked him why Woodson’s 

name did not appear on the certificate. HT at 223, 306-07 (testimony of Lee, 

O’Hare). After Lee explained that Woodson lacked the requisite experience to 

qualify pursuant to the merit promotion procedures under which he had applied, 

CMDR O’Hare asked Lee to readvertise the position in order to give Woodson the 

chance to apply under the DEU procedures. HT at 200, 307-08 (testimony of Lee, 

O’Hare); id., Ex. 6. Lee forwarded CMDR O’Hare’s February 18, 2004 request to 
15

House, the HR Specialist handling the recruitment action at that time, and asked 

the following: “Can we open the . . . [DEU] announcement? Eric Woodson, an 

employee there applied under MP was rated ineligible because of time in grade. 

He should have applied under competitive.” HT, Ex. 6; HT at 37, 40-41, 67-70 

(testimony of House). Notably, this email did not address CMDR O’Hare’s 

alleged interest in reaching a larger pool of candidates or take the position that an 

insufficient number of qualified candidates had applied. HT, Ex. 6; see also HT 

at 71, 139-40, 196, 198 (testimony of House, Beatrez, Lee). In response, House 

had instructed Lee to “have Commander O’Hare talk about lack of adequate 

candidates[.]” HT at 79 (testimony of House). House fully understood that 

CMDR O’Hare was seeking to consider Woodson in making this request. HT at 

70-71, 74, 119-21 (testimony of House); see also HT at 140-41 (testimony of 

Beatrez). Indeed, House annotated a copy of the email message: “Will need to 

combine the two certificates and [management] must have good reason for readvertising.” HT at 79 (testimony of House); id., Ex. 6. Lee conveyed the 

information from House, HT at 196-97 (testimony of Lee), and on the same day, 

March 1, 2004, CMDR O’Hare stated in a facsimile message, handwritten on the 

referral certificate, that she wanted to re-advertise the job “[b]ecause of lack of 

sufficient, well-qualified candidates[,]” HT, Ex. 4A at 7; see also HT at 80-81 

(testimony of House). CMDR O’Hare testified that she and Lee had spoken faceto-face about this issue, and he advised her to develop a “good reason for readvertising.” HT at 312-13. 

¶27 After the second set of vacancy announcements closed, and Woodson still 

did not qualify for the GS-11 position because he lacked time in grade, Lee and 

Beatrez, who by this time was servicing the vacancy announcements, HT at 84, 

86, 141-42 (testimony of House, Beatrez), advised CMDR O’Hare regarding the 

specific language to use to request a cancellation of the second set of vacancy 

announcements and a re-posting of the position with a lower grade of GS-9/11, 

which would allow Woodson to be considered. Indeed, Beatrez was well-aware 
16

of CMDR O’Hare’s intent to reach Woodson, and she reviewed Woodson’s 

application and qualifications first, immediately after the second set of vacancy 

announcements closed. She found that he was not qualified for the position as it 

was advertised and told Lee accordingly. HT, Ex. 8 at 2, HT at 142-43 

(testimony of Beatrez). Additionally, we note, Beatrez informed Lee that House 

had told her that “the reason the job was re-advertised was to try and reach Mr. 

Woodson.” HT, Ex. 8 at 2. Beatrez also told Lee that she was unable to qualify 

Woodson at the GS-11 level, and she asked if Lee wanted the qualified applicants 

incorporated with the prior list. Id. 

¶28 In an email message dated April 5, 2004, after the second set of vacancy 

announcements closed, Lee told CMDR O’Hare: “They did not find [Woodson] 

qualified for the position based on his resume and how he responded to the KSAs. 

My recommendation if you want to [consider] him is to cancel and advertise the 

position as a GS-9 with potential to GS-11.” Id. at 2. This message, however, 

did not address the alleged goal of reaching a broader range of qualified 

candidates or of wanting a larger pool of candidates from which to choose. Id.; 

HT at 90, 144 (testimony of House, Beatrez). On May 17, 2004, CMDR O’Hare 

notified Lee via email that she wanted the position re-announced as a “GS-9/11 to 

expand the pool of qualified applicants with specific licensing experience. Please 

limit the solicitation to all current and former federal employees, and limit to 

LA/LB [Los Angeles/Long Beach] local area.” HT, Ex. 9. She also wanted the 

vacancy to be advertised “for the minimum amount of time.” Id. Lee passed the 

request on to Beatrez, stating that she should re-announce the position as a GS09/11 merit promotion only vacancy with the area of consideration limited to the 

Los Angeles commuting area. HT at 156, 159, 226-29 (testimony of Beatrez, 

Lee). Accordingly, Beatrez cancelled the second set of vacancy announcements 

and issued the third announcement as requested, with an open period of only eight 

days. HT, Exs. 10B, 28C; HT at 146, 153, 156 (testimony of Beatrez). 
17

¶29 Along with the record of cooperation between CMDR O’Hare and the 

respondents, we also must consider the carefully tailored nature of the third and 

final vacancy announcement that virtually ensured that the position qualifications 

would allow Woodson to be incorporated into the pool of qualified applicants. 

The announcement expanded the experience level for potential applicants by 

advertising the open position at both the GS-9 and GS-11 levels, while at the 

same time, it limited consideration of applicants to “Federal employees with 

competitive status (including reinstatement eligibles) in the local commuting 

area,” as well as veterans eligible under the Veterans Employment Opportunities 

Act of 1998 and applicants eligible under the Career Transition Assistance 

Program or Interagency Career Transition Assistance Program. 2

 HT, Ex. 10B. 

Under such specifications, candidates from other Coast Guard REC facilities 

might be precluded from consideration, even though they were a precise match 

for the position in terms of their experience. 3

 Indeed, Beatrez testified that Coast 

Guard management hoped that Woodson would qualify under that announcement. 

HT at 159. We further note that this position is supervisory and had always been 

filled at the GS-11 level prior to this time. HT at 257-58, 426, 433-34, 436-37 

(testimony of Hogan, Kogut, Nelson-Possinger). 

¶30 As for the nature of CMDR O’Hare’s email correspondence, the 

administrative law judge relied upon CMDR O’Hare’s own explanation for her 

actions, specifically that she “didn’t really understand the difference between the 

D[EU] applications and the M[erit Promotion] applications,” HT at 311, and that 

because of lack of training in civilian staffing, she “was confused” about the 

correct procedures to follow, HT at 312; see ID at 3. Notably, however, the 

administrative law judge made no demeanor-based credibility findings regarding 

 

2

 Previous applicants were also considered. HT, Ex. 10B. 

3

 The Coast Guard has RECs at various locations, including New Orleans, Louisiana, 

and Portland, Oregon. HT at 282-83 (testimony of O’Hare). 
18

this particular testimony, and instead seemed to accept it at face value. When an 

administrative judge’s findings are not based on the observation of witnesses’ 

demeanor, the Board is free to re-weigh the evidence and substitute its own 

judgment on credibility issues. Haebe, 288 F.3d at 1302. Even if CMDR O’Hare 

had been truly confused about the operation of the civilian personnel system, such 

confusion is not inconsistent with our finding that she intended to grant Woodson 

an improper preference in hiring, in light of all the evidence in the record that 

points to such intent. Indeed, CMDR O’Hare admitted that she “may have” told 

Woodson that the position would be advertised for the third time. HT at 339. We 

thus reject the respondents’ and the Coast Guard’s assertion that CMDR O’Hare 

was simply seeking to make a selection from a more highly qualified applicant 

pool and that she was solely concerned about a lack of qualified candidates in the 

applicant pool. 

¶31 The respondents submitted considerable testimony from senior Coast Guard 

management officials and documentary evidence intended to show that Lee and 

Beatrez were acting in accordance with agency HR policies and civil service 

regulations governing promotion and hiring. See, e.g., HT at 380-83, 386-90, 

433-443 (testimony of Kogut, Nelson-Possinger), id., Ex. 1 at 10; 5 C.F.R. 

§ 335.103(b)(2) (areas of consideration for merit promotion programs “must be 

sufficiently broad to ensure the availability of high quality candidates, taking into 

account the nature and level of the positions covered”). Likewise, the 

respondents submitted testimony that internal candidates such as Woodson 

offered the most relevant experience for the position, despite the fact he was at a 

low grade, because of the exact nature of the work he performed. In other words, 

by advertising the position only at the GS-11 level, the respondents asserted, the 

Coast Guard would have precluded the most qualified candidates from 

consideration. See HT at 161, 265-66 (testimony of Beatrez, Hogan). 

Additionally, the respondents point out that the Special Counsel has not adduced 

direct evidence that Woodson was pre-selected. PFR File, Tab 3 at 11. 
19

¶32 As the Board stated in Dogar, however, “we [can]not ignore in the case 

before us the serious inconsistencies between the [respondents’] account and the 

documentary evidence,” namely the email record and material testimony 

regarding the interaction between CMDR O’Hare, the respondents, and other HR 

specialists. Dogar, 95 M.S.P.R. 527, ¶ 4. We acknowledge here that the 

strongest evidence of intent points not to the respondents, but to CMDR O’Hare. 

The Special Counsel requested on May 20, 2008, that the Department of 

Homeland Security impose disciplinary action against CMDR O’Hare, but she 

retired effective November 30, 2008, before a hearing could be held. PFR File, 

Tab 1 at 10-11 n.3; see HT at 279, 342 (testimony of O’Hare). Nevertheless, 

given the rather blatant intention of granting a preference to Woodson that CMDR 

O’Hare’s communications express to the respondents, we also cannot ignore the 

actions of the respondents, who are HR professionals, in intentionally facilitating 

an obvious violation of section 2302(b)(6). See Byrd, 59 M.S.P.R. at 577, 583-84 

(finding that because of respondent Rubenstein’s “area of expertise” as a 

personnelist, “he had the professional responsibility to advise management that 

using the TLA [(temporary limited appointment authority) to give an improper 

preference to an applicant for employment] ... was illegal” under 5 U.S.C. 

§ 2302(b)(6) and (b)(11)). We therefore interpret 5 U.S.C. § 2302(b)(6) to reach 

conduct that aids and abets another who is violating the statute. 

¶33 Our interpretation of 5 U.S.C. § 2302(b)(6) here may seem at first glance to 

conflict with another long-standing tenet of civil service law frequently 

implicated in insubordination cases. Government employees may not refuse to do 

work merely because of disagreements with management, and they fail to perform 

their assigned duties at the risk of being insubordinate. Nagel v. Department of 

Health & Human Services, 707 F.2d 1384, 1387 (Fed. Cir. 1983). Further, the 

Board has held that an employee does not have the unfettered right to disregard 

an order merely because there is a substantial reason to believe that the order is 

not proper; rather, he must first comply with the order and then register his 
20

complaint or grievance, except in certain limited circumstances where obedience 

would place the employee in a clearly dangerous situation, or when complying 

with the order would cause him irreparable harm. E.g., Bowen v. Department of 

the Navy, 112 M.S.P.R. 607, ¶ 15 (2009); Pedeleose v. Department of Defense, 

110 M.S.P.R. 508, ¶¶ 16-18, aff’d, 343 F. App’x 605 (Fed. Cir. 2009); Cooke v. 

U.S. Postal Service, 67 M.S.P.R. 401, 407-08, aff’d, 73 F.3d 380 (Fed. Cir. 1995) 

(Table). For the subordinate employee, the “obey now, grieve later” doctrine can 

be a safety net, because the Board has declined to sustain charges of misconduct 

where the employee has, despite his own misgivings, met his obligation under 

Nagel to perform as directed, and the order he obeyed is found to be an improper 

one. See, e.g., Blake v. Department of Justice, 81 M.S.P.R. 394, ¶ 25 (1999) 

(holding that one specification of a charge could not be sustained where the 

appellant’s actions underlying the specification had been “taken under the explicit 

directions of much more highly placed . . . superiors” at the agency); Rose v. 

Department of Housing & Urban Development, 26 M.S.P.R. 356, 360 (1985) 

(holding that the appellant, whose actions were directed by his supervisors, 

“should not be disciplined in this case because Government employees may not 

refuse an instruction to do certain work merely because they challenge its 

propriety”). Indeed, where intent is a relevant consideration in the charge, it 

should “properly be imputed, not to the appellant, but to the person who issued 

the order,” as it is not the appellant’s “responsibility or prerogative to determine 

the rightness or wrongness” of the order. Blake, 81 M.S.P.R. 394, ¶ 25. 

¶34 The facts now before us may be distinguished from a typical “obey now, 

grieve later” situation. There is no evidence that CMDR O’Hare ordered the 

respondents to take actions that would ensure that Woodson appeared on the 

certificate of eligibles, nor was either respondent one of CMDR O’Hare’s 

subordinates. Instead, the respondents were part of the Coast Guard’s 

headquarters Civilian Personnel Office. Lee was the Command Staff Advisor for 

the Los Angeles/Long Beach area in the field, and Beatrez, who is now the West 
21

Branch Chief and Lee’s direct supervisor, was a Washington, D.C.-based HR 

Specialist in the West Branch at the time. HT at 37-41, 135, 180-81, 375-76, 

401-02 (testimony of House, Beatrez, Lee, Kogut). While Lee may have been 

“the personal point of contact in [the Civilian Personnel Office] with the 

management officials and employees that he serviced,” HT at 401 (testimony of 

Kogut), and “answer[ed] questions from management officials about any issue 

related to operational personnel,” id., he was nevertheless in the chain of 

command for the Civilian Personnel Office, as was Beatrez, and not for the Los 

Angeles REC. As such, neither respondent was a subordinate to CMDR O’Hare. 

Even if CMDR O’Hare’s questions and requests regarding personnel management 

matters could be construed as orders, the respondents were responsible to a 

separate organization. Because he was on-site, Lee may have been more 

susceptible to the influence of local management; however, in his testimony, 

Kogut repeatedly characterized Lee’s role as advisory. Kogut testified that Lee 

“answers questions” and “gives that face-to-face direct contact with” local 

management. HT at 401. Lee “advised Commander O’Hare and subsequently 

Commander Hogan on the recruitment process, the hiring process, the 

announcement process, answered questions from Commander O’Hare with regard 

to the recruitment process . . . a typical command staff advisor role.” HT at 402. 

As HR advisors outside of the local chain of command, the respondents should 

have exercised their independent judgment and challenged local management’s 

fairly obvious efforts to grant a preference to Woodson for the purpose of 

improving his prospects for selection as the Supervisory Merchant Marine 

Evaluation Specialist for the Los Angeles REC. See Byrd, 59 M.S.P.R. at 577, 

583-84. 

¶35 In reaching this conclusion, we are mindful of our obligation to faithfully 

uphold the merit system principles as set forth by Congress, see 5 U.S.C. § 2301, 

and to “serve Congress’[s] interest in putting agencies subject to the Civil Service 

Reform Act . . . on notice that selections for employment must be made in 
22

accordance with law and must not be the result of personal or political 

favoritism.” Byrd, 59 M.S.P.R. at 584. In section 2302(b)(6), Congress set forth 

the plainest of language prohibiting the granting of a preference or advantage not 

authorized by law, rule, or regulation for the purpose of improving or injuring the 

prospects of any particular person for employment by any employee who has 

authority to take, direct others to take, recommend, or approve any personnel 

action. Although some may see the respondents as lacking any improper motive 

or reasonably relying on unquestioned past practices, the Board has spoken before 

on this issue. In Special Counsel v. Ross, for example, the Board affirmed and 

adopted as modified the recommended decision sustaining charges that a 

Personnel Officer and a Personnel Management Specialist engaged in prohibited 

personnel practices in violation of 5 U.S.C. § 2302(b)(4), (5), (6), by 

manipulating the selection process to place a temporary employee in an open 

permanent position despite the fact that she was the lowest-ranked candidate on 

the certificate of eligibles, after management “name-requested” that employee for 

the position. Special Counsel v. Ross, 34 M.S.P.R. 197, 200-03 (1987). 

Likewise, in Byrd, the Board sustained charges that respondent Rubinstein, a 

personnelist, had engaged in prohibited personnel practices in violation of 5 

U.S.C. § 2302(b)(6), (11), when he assisted respondent Byrd, the selecting 

official, in using TLA authority to grant a hiring preference to a politicallyconnected candidate for a position that was filled under a merit staffing 

announcement in the hiring at the agency’s other locations, because he “should 

have known that the use of the TLA authority was inappropriate in this case” and 

“he had the professional responsibility to advise management that using the TLA 

in this case was illegal.” Byrd, 59 M.S.P.R. at 577, 583-84. Accordingly, we 

find that the Special Counsel has proven by a preponderance of the evidence that 

both respondents violated 5 U.S.C. § 2302(b)(6) when they intentionally assisted 

CMDR O’Hare in granting an illegal preference for employment to Woodson. 
23

Penalties

¶36 We now turn to the issue of penalties. The Special Counsel recommends a 

suspension of not less than sixty days for each respondent. BCF, Tab 21 at 1, 19-

20; LCF, Tab 18 at 1, 19-20; PFR File, Tab 1 at 24. The Special Counsel argues 

that the seriousness of the offense merits a severe penalty. BCF, Tab 21 at 19; 

LCF, Tab 18 at 19; see Velez, 101 M.S.P.R. 650, ¶ 26 (in evaluating a penalty, the 

Board will consider, first and foremost, the nature and seriousness of the 

misconduct and its relationship to the employee’s duties, position, and 

responsibilities, including whether the offense was intentional or was frequently 

repeated). 

¶37 The range of penalties for a Special Counsel disciplinary action is set forth 

in 5 U.S.C. § 1215(a)(3): 

A final order of the Board may impose disciplinary action consisting 

of removal, reduction in grade, debarment from Federal employment 

for a period not to exceed 5 years, suspension, reprimand, or an 

assessment of a civil penalty not to exceed $1,000. 

In determining the penalty in Special Counsel disciplinary actions, we apply the 

factors that are set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 

305-06 (1981); see, e.g., Byrd, 59 M.S.P.R. at 582. In considering these factors, 

the Board also takes into account the particularized circumstances of this 

proceeding. See id. We address these factors in turn. 

¶38 As to the nature and seriousness of the offense, and its relation to the 

respondents’ duties, position, and responsibilities, including whether the offense 

was intentional or technical or inadvertent, or was committed maliciously or for 

gain, or was frequently repeated, see Douglas, 5 M.S.P.R. at 305, we find that the 

offense was, in fact, serious and goes straight to the heart of the respondents’ 

duties, positions, and responsibilities. However, while we have found that the 

respondents’ offense was intentional, the Special Counsel has adduced no 

evidence to suggest that it was committed maliciously or for gain, or that it was 

frequently repeated. 
24

¶39 As to the respondents’ job level and type of employment, including 

supervisory or fiduciary roles, contacts with the public, and prominence of the 

position, see Douglas, 5 M.S.P.R. at 305, Beatrez was a nonsupervisory, 

journeyman-level HR Specialist in the agency’s Washington, D.C.-based Civilian 

Personnel Office at the time of the events leading to the complaint, and she had 

limited public contact and no fiduciary responsibilities, HT at 393, 446 

(testimony of Kogut, Nelson-Possinger). Lee, also a journeyman-level HR 

Specialist, was the Command Staff Advisor for the Civilian Personnel Office and 

serviced agency organizations throughout California. HT at 401 (testimony of 

Kogut). Nelson-Possinger testified that, while playing a prominent role in the 

agency’s West Coast operations, Lee did not have fiduciary responsibilities. HT 

at 456. 

¶40 As for the respondents’ past disciplinary records, see Douglas, 5 M.S.P.R. 

at 305, they had none, HT at 393-94, 446, 456 (testimony of Kogut, NelsonPossinger). Turning to their past work records, including length of service, 

performance on the job, ability to get along with fellow workers, and 

dependability, see Douglas, 5 M.S.P.R. at 305, Kogut testified that Beatrez was 

“a very responsible employee who has many years of federal service . . . without 

any negative comments in her record,” HT at 394. Nelson-Possinger 

characterized Beatrez as a “stellar” employee in terms of dependability, with 

twenty-one years of federal service, more than ten years of which have been with 

the Coast Guard. HT at 446-47. Beatrez’s performance appraisals showed that 

her work has “been at the highest levels.” HT at 447. Nelson-Possinger 

characterized Lee as an “extremely dependable” employee, who “really has 

carried the weight of the Alameda office on his shoulders as long as [she has] 

been there.” HT at 456-57. 

¶41 As for the effect of the offense upon the respondents’ ability to perform at a 

satisfactory level and its effect upon supervisors’ confidence in their ability to 

perform assigned duties, see Douglas, 5 M.S.P.R. at 305, Kogut testified that 
25

proof of wrongdoing would affect his confidence in Beatrez to the extent that he 

“would have to get her additional guidance instruction” and perform “additional 

oversight of her work,” HT at 395. Nelson-Possinger testified that the Special 

Counsel’s investigation and hearing in these complaints has not affected 

Beatrez’s ability to do her work: 

Even during the last six or more months that we’ve been preparing 

for this hearing, she has not missed a beat. She’s continued to 

supervise her branch, she’s continued to take on new responsibilities, 

and has, even as the branch chief, in lots of instances taken the lead 

for special projects. 

HT at 447. As for Lee, Nelson-Possinger testified that he had “taken on even 

additional work” related to the Coast Guard’s modernization during the pendency 

of the complaint. HT at 457. “There would be no degradation of [Lee’s] 

performance at all.” Id. 

¶42 When asked about consistency of the penalty with those imposed upon other 

employees for the same or similar offenses, see Douglas, 5 M.S.P.R. at 305, both 

Kogut and Nelson-Possinger testified that there had been no similar offenses in 

the Coast Guard that they were able to find, HT at 395-97, 447-48, 458. NelsonPossinger explained that the Coast Guard’s table of penalties would allow 

penalties ranging from reprimand to removal and that she believed a “reprimand 

should be the most” severe penalty imposed on Beatrez. HT at 447-48. 

¶43 As for the notoriety of the offense or its impact upon the Coast Guard’s 

reputation, see Douglas, 5 M.S.P.R. at 305, Kogut testified that the offense was 

“not notorious . . . not widespread, widely known. . . . I haven’t read about it in 

the newspaper . . . . I haven’t seen it anywhere.” HT at 396-97. Kogut described 

a contrasting situation, the prominent news coverage following the arrest of the 

Federal Security Director at Dulles International Airport for driving while 

intoxicated. HT at 397. Nelson-Possinger opined that there had been no loss of 

reputation for the agency because of the respondents’ actions. HT at 448. 
26

¶44 As for the clarity with which the respondents were on notice of any rules 

that were violated in committing the offense, or whether they had been warned 

about the conduct in question, see Douglas, 5 M.S.P.R. at 305, Kogut testified 

that neither Beatrez nor anyone else at the agency had notice: 

As I said before, your honor, this is a process that in the Coast Guard 

occurs frequently where we announce jobs, reannounce jobs to get 

the best quality candidates. This is not a one-time occurrence. So 

just the opposite. [Beatrez] would have seen this as something that 

was proper, appropriate versus inappropriate and wrong. 

HT at 398. Nelson-Possinger testified: “There was no clarity. [Beatrez] did not 

know and neither did I that the Coast Guard was committing a prohibited 

personnel practice.” HT at 449. Regarding Lee, she added, “This whole charge 

by [the Special Counsel] hit us out of left field, so we were not on notice. We did 

not know we were doing anything wrong. . . . [Lee] had no prior knowledge that 

anything, any advice he gave Commander Hogan would be turned into a charge of 

prohibited personnel practice.” HT at 458-59. 

¶45 Both Kogut and Nelson-Possinger found high potential for both respondents 

to be rehabilitated. See Douglas, 5 M.S.P.R. at 305. Kogut testified, “I strongly 

believe that [Beatrez] would be very easily rehabilitated.” HT at 399. NelsonPossinger stated that Beatrez’s potential for rehabilitation was “excellent.” HT at 

449. As for Lee, she said, “Now that he understands [the Special Counsel’s] 

interpretation . . . he understands and can be rehabilitated.” HT at 459. 

¶46 Neither Kogut nor Nelson-Possinger could identify any mitigating 

circumstances surrounding the offense, such as unusual job tensions, personality 

problems, mental impairment, harassment, or bad faith, malice or provocation on 

the part of others involved in the matter, that would apply in this case. HT at 

399, 449, 459; see Douglas, 5 M.S.P.R. at 305. Finally, as to the adequacy and 

effectiveness of alternative sanctions to deter such conduct in the future by the 

respondents or others, see Douglas, 5 M.S.P.R. at 306, both witnesses emphasized 
27

the importance of retraining HR employees so they would not commit similar 

offenses in the future, HT at 399, 450, 459-60. 

¶47 We find that both respondents are strong performers and valued employees 

without prior discipline and with rehabilitation potential. Neither was a 

supervisor or manager at the time that the charged conduct took place. The major 

difference between the respondents that would affect the penalty is the degree and 

duration of their support for CMDR O’Hare’s pre-selection efforts. This 

difference goes to the first and most important Douglas factor, the nature and 

seriousness of the offense, and its relation to the employee’s duties, position, and 

responsibilities. 

¶48 Lee was involved with the REC’s recruitment efforts for a longer period of 

time and on a much more intimate level than Beatrez. His improprieties began 

with the cancellation of the first set of vacancy announcements. Lee worked 

directly with REC management, and by the agency’s admission, he served as HR 

liaison between the REC and the Civilian Personnel Office. Lee was thus in the 

best position to dissuade local management from prohibited personnel practices. 

Indeed, that was part of his job, and there is no indication he did so. In 

determining the appropriate penalty, we are guided by Byrd, 59 M.S.P.R. at 577, 

583-84. As mentioned previously, in Byrd the Board found that a personnelist 

violated 5 U.S.C. § 2302(b)(6) and (11) by using a hiring authority, which he 

knew or should have known was improper, to give an individual an advantage in 

hiring. The Board recognized that his actions were the result of his superiors 

directing him to find a way to hire the individual in question. The Board found, 

though, that someone in the personnelist’s position should have known that using 

temporary limited appointment hiring authority was improper and should have 

informed his supervisors of that fact, but he failed to do so. Id. at 583-84. The 

Board then determined that a 60-day suspension was warranted despite the 

personnelist’s 16 years of service and status as an “exemplary” employee. Id. at 

584. Lee’s situation is remarkably similar to the one described in Byrd. 
28

Balancing the mitigating factors with the seriousness of the offense, we impose 

on respondent Lee a suspension without pay of forty-five days as the appropriate 

penalty under the circumstances of this case. 

¶49 Beatrez only became entangled at some point before the second set of 

vacancy announcements closed. Although, as the headquarters HR Specialist 

servicing the vacancy announcements, she was in a position to help halt the 

ongoing prohibited personnel practice, she did not act in this case and she bears 

liability for her serious offense. Balancing the mitigating factors with the 

seriousness of the offense, we impose on respondent Beatrez a ten-day suspension 

without pay as the appropriate penalty under the circumstances of this case. 

ORDER

¶50 Accordingly, the Board ORDERS the U.S. Coast Guard to suspend 

respondent Lee for a period of forty-five days without pay. The Board also 

ORDERS the U.S. Coast Guard to suspend respondent Beatrez for a period of ten 

days without pay. 

¶51 Within sixty days of the date of this Order, the Special Counsel shall file a 

report on the status of compliance with the Board’s Order regarding penalties in 

this case. 

NOTICE TO THE RESPONDENTS REGARDING

THEIR FURTHER REVIEW RIGHTS

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

Federal Circuit to review the Board’s final decision in your appeals if the court 

has jurisdiction. See 5 U.S.C. § § 1214(c), 1215(a)(4), and 7703(b). 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 
29

The court must receive your request for review no later than sixty 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 sixty calendar days after the receipt of this order by your 

representative, if you have one, or receipt by you personally, whichever receipt 

occurs first. See 5 U.S.C. § 7703(b)(1). 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 

“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. 
CONCURRING OPINION OF ANNE M. WAGNER

in 

Special Counsel v. Richard F. Lee, Diane L. Beatrez 

MSPB Docket Nos. CB-1215-08-0014-T-1, CB-1215-08-0015-T-1 

¶1 I fully agree with the Board’s opinion finding that the respondents 

committed a prohibited personnel practice that warrants discipline. However, in 

balancing the mitigating factors with the aggravating factors in this case, I would 

impose suspensions without pay on Lee and Beatriz of shorter duration than the 

penalties ordered in the Board’s decision. 

______________________________ 

Anne M. Wagner 

Vice Chairman