UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CENTRAL REGIONAL OFFICE 

KIMBERLY A. GRAVES,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-0707-16-0180-J-1

DATE: January 29, 2016

James P. Garay Heelan, Washington, D.C., for the appellant.

Julia H. Perkins, Esquire, Washington, D.C., for the appellant.

Demetrious A. Harris, Esquire, Dayton, Ohio, for the agency.

Kristi Glavich, Detroit, Michigan, for the agency.

Thomas Herpin, Esquire, Houston, Texas, for the agency.

BEFORE

Michele Szary Schroeder

Chief Administrative Judge

DECISION

The hearing in this case took place at Chicago, Illinois from January 25 -

27, 2016. A decision was announced at the hearing and it is fully documented in 

the attached partial hearing transcript. The partial transcript contains the 

complete decision and related reasoning and legal references. The date on which 

the bench decision was announced at the hearing was its effective date. 
2

DECISION

The agency’s action is REVERSED.

FOR THE BOARD: ______________________________

Michele Szary Schroeder

Chief Administrative Judge

NOTICE TO APPELLANT

Pursuant to 38 U.S.C. § 713(e)(2), this decision is final and not subject to 

any further appeal.

ATTORNEY FEES

You may ask for the payment of attorney fees (plus costs, expert witness 

fees, and litigation expenses, where applicable) by filing a motion with this office 

as soon as possible, but no later than 60 calendar days after the date this decision. 

Any such motion must be prepared in accordance with the provisions of 5 C.F.R. 

Part 1201, Subpart H, and applicable case law.

ENFORCEMENT

If, after the agency has informed you that it has fully complied with this 

decision, you believe that there has not been full compliance, you may ask the 

Board to enforce its decision by filing a petition for enforcement with this office, 

describing specifically the reasons why you believe there is noncompliance. 

Your petition must include the date and results of any communications regarding 

compliance, and a statement showing that a copy of the petition was either mailed 

or hand-delivered to the agency. Pursuant to 5 C.F.R. § 1210.20(d)(1), the 

procedures in 5 C.F.R. Part 1201, Subpart F, not those in Part 1210, apply to any 

such petition. 
3

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process 

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as 

ordered by the Merit Systems Protection Board, EEOC, and courts. 

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise 

information describing what to do in accordance with decision. 

2. The following information must be included on AD-343 for Restoration: 

 a. Employee name and social security number. 

 b. Detailed explanation of request. 

 c. Valid agency accounting. 

 d. Authorized signature (Table 63) 

 e. If interest is to be included. 

 f. Check mailing address. 

 g. Indicate if case is prior to conversion. Computations must be attached. 

 h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to 

be collected. (if applicable) 

Attachments to AD-343 

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday 

Premium, etc. with number of hours and dates for each entitlement. (if applicable) 

2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and 

amounts. 

3. Outside earnings documentation statement from agency. 

4. If employee received retirement annuity or unemployment, provide amount and address 

to return monies. 

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of 

the type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual 

Leave to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay 

Period and required data in 1-7 above. 

The following information must be included on AD-343 for Settlement Cases: (Lump 

Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) 

 a. Must provide same data as in 2, a-g above. 

 b. Prior to conversion computation must be provided. 

 c. Lump Sum amount of Settlement, and if taxable or non-taxable. 

If you have any questions or require clarification on the above, please contact NFC’s 

Payroll/Personnel Operations at 504-255-4630.
4

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CENTRAL REGIONAL OFFICE

________________________________ 

KIMBERLY A. GRAVES, ) 

 Appellant, ) Docket No.

v. ) CH-0707-16-0180-J-1

DEPARTMENT OF VETERANS AFFAIRS,)

 Agency. )

________________________________ 

 Merit Systems Protection Board

Kluczynski Federal Building

230 South Dearborn Street

Room 3124

Chicago, Illinois 60604

Wednesday,

January 27, 2016

The above-entitled matter came on for closing statements 

and a bench decision, pursuant to notice, at 9:00 a.m.

BEFORE: MICHELE SZARY SCHROEDER

 Chief Administrative Judge
5

APPEARANCES:

On Behalf of the Appellant:

JULIA H. PERKINS, ESQ.

JAMES P. GARAY HEELAN, ESQ.

Shaw Ransford & Roth, P.C.

1100 Connecticut Avenue

Suite 900

Washington, DC 20036

(202) 463-8400

On Behalf of the Agency:

DEMETRIOUS HARRIS, ESQ.

Department of Veterans Affairs 

4100 West Third Street

Building 408, 2nd floor

Dayton, Ohio 45248

(937) 267-5365 

THOMAS HERPIN, ESQ.

Department of Veterans Affairs 

6900 Almeda Road

Houston, Texas 77030

(202) 714-6554
6

APPEARANCES:

On Behalf of the Agency:

KRISTI GLAVICH, ESQ.

Department of Veterans Affairs 

477 Michigan Avenue, Room 1460

Detroit, Michigan 48226

(313) 471-3649

KEVIN GAFFNEY, PARALEGAL

Department of Veterans Affairs 

5000 South 5th Avenue

Building 1, Room G131

Hines, Illinois 60141

(708) 202-2239
7

P R O C E E D I N G S

CHIEF ADMIN. JUDGE MICHELE SZARY SCHROEDER: Good 

morning, my name is Michele Schroeder. I'm the Administrative 

Judge assigned to the matter of Kimberly Graves v. Department of 

Veterans Affairs. It is approximately 11:15 Central Time. As I 

indicated to the parties at the close of the testimony 

yesterday, I am issuing a bench decision in this matter. A few 

notes as to the decision I will be issuing. 

Unless otherwise indicated all of my references 

to testimony refer to the testimony given in this proceeding on 

January 25th and 26th. I will only provide case citations 

during my bench decision. Any citations to the record will be 

entered in the transcript once it is prepared. Similarly to the 

extent that I use acronyms in my oral decision, the actual words 

will be entered in the transcript as well as, there was an 

agreed-upon list filed by the parties. So the acronyms and the 

actual words will be either from the record or from that filing. 

Furthermore, the Appellant, you will be referred to as either 

the Appellant or Ms. Graves throughout the decision. And the 

Agency will either be the Agency or the VA. 

On January 19th, 2016, Kimberly Graves filed a 

timely appeal challenging the Deputy Secretary's decision to 

transfer her from a Senior Executive Service (SES) position to a 

General Schedule position. (Appeal Record (AR), Tab 1). The 
8

Board has jurisdiction over Ms. Graves' appeal pursuant to 38 

U.S.C. § 713(e) and 5 U.S.C. § 7701(b)(1). Ms. Graves requested 

a hearing and that hearing was held in Chicago on January 25th 

and 26th. Closing statements were taken on January 27th. 

The statute imposes severe time restrictions and 

we also had to deal with the aftermath of a historic storm on 

the east coast. Both of these factors impacted the amount of 

time I was able to allow for testimony and the availability of 

the witnesses, also the method that we were able to use to 

examine the witnesses. I did, however, take approximately 10 

hours of testimony in this matter. 

Before I give my decision I want to mention that 

the time constraints under which this appeal had to be processed 

made for an incredibly difficult two-and-a-half weeks for 

everyone involved. Looking at the record in this matter, in 

excess of approximately 3,800 pages, it is more than obvious 

that since the day this appeal was file, the parties have been 

working almost 24/7. That being said, I would like to commend 

counsel on both sides for the diligence and civility they 

exhibited during the processing of this appeal.

For the reasons that follow, I conclude (1) the 

Agency proved its charge by preponderant evidence creating a 

rebuttable presumption that the transfer penalty was reasonable; 

(2) that the Appellant failed to prove her affirmative defenses 

by preponderant evidence; and (3) that the Appellant rebutted 

the presumption and established that the penalty was 

unreasonable under the circumstances of this case. Accordingly, 
9

the Agency's action is reversed.

BACKGROUND AND PROCEDURAL HISTORY

At the time this action was taken, Ms. Graves was 

employed as the Director of the Veteran Affairs Regional Office 

in St. Paul, Minnesota. She was appointed to this position on 

October 19, 2014. Prior to becoming Director of the St. Paul 

office, Ms. Graves served as the Eastern Area Director of the 

Veterans Benefits Administration (VBA) in Washington, D.C. since 

2010. Both of these positions were Senior Executive Service 

positions. Ms. Graves was appointed to the Senior Executive 

Service in 2005. (AR, Tab 30).

On October 29th, 2015 Deputy Secretary Sloan 

Gibson issued Ms. Graves a Pending Action Memorandum notifying 

her he intended to transfer her pursuant to the Veterans' 

Access, Choice and Accountability Act of 2014. (This Act is 

codified at 38 U.S.C. § 713) from the Senior Executive Service 

to a General Schedule position at the 

GS-15, Step 1 level for the charge of Failure to Exercise Sound 

Judgment. Deputy Secretary Gibson sustained the Pending 

Action Memorandum (PAM) against Ms. Graves on November 20th, 

2015 and Ms. Graves filed an appeal with the Board on November 

27th, 2015. After the Agency filed a Motion to Dismiss based on 

its recision of the action and Ms. Graves stipulated to that 

dismissal, I dismissed her first appeal on December 3rd, 2015. 

(See, Kimberly Graves. Department of Veterans Affairs, CH-0707-

16-0112-J-1.) 

On December 3rd, 2015, Deputy Secretary Gibson 
10

issued Ms. Graves a second Pending Action Memorandum using the 

same charging language as the initial action notifying her that 

he again planned on transferring her to a GS-15 position. The 

basis for the transfer from the Senior Executive Service to a 

General Schedule position was the same as with the first action, 

one charge of Failure to Exercise Sound Judgment. 

The specification accompanying the charge stated: 

In March, 2014 Antione Waller, Director of the St. Paul Veterans 

Affairs Regional Office, expressed interest in being reassigned 

to the east coast. In May, 2014 you participated in 

facilitating Mr. Waller's relocation to the Baltimore Regional 

Office at government expense by signing official government 

documents as the recommending official for Mr. Waller's 

reassignment and relocation benefits. You expressed interest in 

the St. Paul vacancy Mr. Waller's reassignment created as early 

as July 18, 2014, before Mr. Waller's relocation was effective. 

On or about October 19, 2014 you were reassigned to the position 

previously occupied by Mr. Waller. You received relocation 

benefits pursuant to this reassignment.

By failing to fully extricate yourself from the 

activities surrounding Mr. Waller's relocation and then by 

accepting a reassignment to Mr. Waller's former position and 

relocation benefits from the Department, you created the 

appearance that these transactions were approved for reasons 

other than the best interests of Veterans. I consider this a 

failure to exercise the sound judgment I expect from a Senior 

Executive. (AR, Tab 1).
11

Ms. Graves submitted a written response to the 

Pending Action Memorandum and on January 6th, 2016 Deputy 

Secretary sustained the charge set forth in the Pending Action 

Memorandum. (AR, Tabs 1 and 23). On January 9th, 2016 the 

Appellant submitted an appeal under 38 U.S.C. § 713(d)(2)(A). 

(AR, Tab 1).

STIPULATIONS AND ADMISSIONS

Three stipulations were reflected in my summary 

of the pre-hearing conference dated January 19th, 2016, which 

are as follows:

1. The relocation benefits the Appellant received did

not violate any statute, law, rule or 

regulation.

2. The pay that the Appellant continued to receive 

after her transfer to St. Paul did not violate 

any statute, law, rule or regulation, and it was

an amount that was within the Senior Executive

Service pay band applicable for her position in 

St. Paul.

3. The criminal referral regarding the Appellant to 

the U.S. Attorney's Office was declined.

Pursuant to the parties' agreement these 

stipulations were placed on the record at the start of the 

hearing. In addition, the parties filed as part of the record 

in this appeal a stipulation regarding Jose Riojas, who was the 

Chief of Staff to Secretary McDonald. And lastly, the Agency's 

response to Ms. Graves' requests for admissions and amended 
12

requests for admissions were accepted into the record. (AR, 

Tabs 47, 62, 68 and 74).

STANDARDS AND BURDENS APPLICABLE TO THIS APPEAL

Before I get started, I wish to acknowledge the 

Appellant's assertion that the statute - 38 U.S.C. § 713 - is 

unconstitutional. I advised the parties at the 

prehearing conference that I do not have the authority to 

declare a statute unconstitutional. (AR, Tab 62). I cite 

Special Counsel v. Bianchi, 57 M.S.P.R. 627, 633 (1993); but 

just indicating that for the record, as I promised the Appellant 

I would, and her counsel. 

As to the legal standards of my review and 

burdens: The Agency must prove its charged misconduct by 

preponderant evidence. See 5 C.F.R. § 1210.18(a). Preponderant 

evidence is that degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as 

sufficient to find that a contested fact is more likely to be 

true than untrue. 

See 5 C.F.R. § 1201.4(q).

If the Agency meets its burden, a rebuttable 

presumption is created that the decision to transfer the 

Appellant was warranted and the Appellant may rebut this 

presumption by establishing that the imposed penalty was 

unreasonable under the circumstances of the case. See

5 C.F.R. § 1201.18(a).

If the Appellant rebuts the presumption as to the 

penalty, the Agency's action must be reversed. Mitigation of 
13

penalty by the Administrative Judge is not authorized. See 5 

C.F.R. § 1201.18(d).

As to determining whether the penalty is 

unreasonable, I note that the Board's well-known penalty 

decision Douglas v. Veterans Administration, 5 M.S.P.R. 280 

(1981), is not applicable to this appeal under 38 U.S.C. § 713. 

I will, however, use the Douglas Factors as instructive along 

with any other bases the parties present for my consideration. 

I note that some of the Douglas Factors were cited by the Deputy 

Secretary when he arrived at his decision. The ultimate 

decision that I make as to the reasonableness of the penalty is 

being made on the totality of the circumstances in this case.

As to her affirmative defenses, the Appellant 

must prove them by preponderant evidence pursuant to 5 C.F.R. § 

1210.18(b)(3). In addition, in resolving credibility issues, I 

have considered the seven elements set forth in Hillen v. 

Department of the Army, 35 M.S.P.R. 453, 458 (1987).

As I advised the parties during the pre-hearing 

conference and then memorialized in my pre-hearing summary (AR, 

Tab 62), the fact that evidence is hearsay went to the weight I 

gave the evidence but not its admissibility. I did not 

entertain any objections based on hearsay during the hearing 

because of time constraints, but advised counsel they were free 

to discuss the weight I should give any hearsay evidence in 

closing statement. I have applied the factors set out in 

Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981).
14

Charged conduct typically consists of two parts, 

a name or a label, that generally characterizes the misconduct 

and a narrative description of the alleged acts that constitute 

the misconduct. See Alvarado v. Department of the Air Force, 

103 M.S.P.R. 1, ¶14 (2006).

The charged conduct in this case is failure to 

exercise sound judgment. I find this is a generic charge 

because the charge itself does not have specific elements of 

proof. Where an Agency uses general charging language for its 

label, language which does not describe the misconduct with 

particularity, one must look to the specification to determine 

what conduct the Agency is relying on as the basis for its 

proposed disciplinary action. See LaChance v. Merit Systems 

Protection Board, 147 F.3d 1367, 1372 (Fed. Cir. 1998); Boltz v. 

Social Security Administration, 111 M.S.P.R. 568, ¶¶ 16 and 17 

(2009).

In examining the charge against Ms. Graves I am 

required to review the Agency's decision solely on the grounds 

invoked by the Agency; that is, I may not substitute a more 

adequate or proper basis. See Minor v. United States Postal 

Service, 115 M.S.P.R. 307, ¶ 10 (2010).

Based on my review of the charge, using the 

language chosen by the Agency in crafting its charge, I find Ms. 

Graves was charged with creating an appearance of impropriety 

based on the approvals of Antione Waller's reassignment to 

Baltimore from St. Paul and Ms. Graves subsequently taking Mr. 
15

Waller's position in St. Paul because she failed to fully 

extricate herself from the activities surrounding Mr. Waller's 

reassignment. 

I reviewed this charge that Ms. Graves had placed 

against her of Failing to Exercise Sound Judgment by creating an 

appearance of impropriety under an objective standard, i.e., 

whether the actions would appear improper to a reasonable person 

with knowledge of the relevant facts under the circumstances. 

See Special Counsel v. Nichols, 36 M.S.P.R. 445, 455 (1988); see 

also 5 C.F.R. § 2635.105(b)(14).

My findings as to the history of the activities 

surrounding the charge levied against Ms. Graves are as follows:

Before that, let me point out that in the record, 

which is voluminous as I mentioned previously, are numerous 

documents that indicate concern over relocation benefits, the 

reassignment process, and the pay retention policies utilized by 

the Veterans Administration. For the most part, and unless I 

specifically note as such, these documents are not relevant to 

my decision and I did not consider them. The VA not only did 

not charge Ms. Graves with anything relating to these issues, 

but it was stipulated by the Agency that Ms. Graves' pay 

retention and relocation benefits did not violate any law, rule 

or regulation. (AR, 62; Stipulations entered in hearing 

record). Whether or not these are valid concerns, they would 

have to be addressed in an appropriate forum. These issues are 

simply not before me to decide or to comment on. The task 

before me is dictated by the law and what the law requires me to 
16

do is limited to three things in this matter: (1) determining 

if the VA proved its charge by preponderant evidence; (2) 

determining if Ms. Graves rebutted the presumption that the 

penalty imposed was reasonable; and (3) whether Ms. Graves 

sustained her burden as to her affirmative defense; nothing more 

and nothing less.

Also, as to the Office of Inspector General 

Report, there was no dispute that the Office of Inspector 

General Report concluded, and this was well recognized by all 

the witnesses I believe, that Ms. Graves coerced Mr. Waller into 

taking the reassignment in Baltimore in order that she could 

take his position in St. Paul. That, however, is not what the 

Agency charged in the matter that is before me. And to the 

extent any evidence from the Office of Inspector General 

investigation contained bias, inconsistencies or error, I have 

conducted my own independent review of the related testimony and 

documents as to how they related to the charge that was filed in 

this appeal and that is before me. See Jackson v. Veterans 

Administration, 768 F.2d 1325, 1329 (Fed. Cir. 1985) (holding 

that the Board has de novo authority to adjudicate facts of a 

disciplinary action).

FINDINGS

I want to preface when I start the findings, 

because of how I interpreted the charge that was before me, I 

have made some findings to put the whole matter in context, but 

a lot of what I'm finding ultimately will not be relevant in my 

decision.
17

In March, 2014 Ms. Graves was the Director of the 

Eastern Region. Her areas of responsibility included the 

Regional Office in Baltimore, Maryland. (AR, Tab 30).

In March 2014, Mr. Waller was the Director of the 

St. Paul, Minnesota Regional Office. In February or March 2014, 

Mr. Waller contacted Christopher Holly. (AR, Tab 5 at 102, Tab 

30, Tab 66 at 191, and Testimony, Holly). At the time in 

question he was the Deputy Chief of Staff for the Veterans 

Benefit Administration in Washington and most likely, during 

that time in question, Mr. Holly was the Acting Director of 

Human Resources for the Veterans Benefits Administration. Mr. 

Waller and Mr. Holly were also acquainted with each other as Mr. 

Waller was Mr. Holly's mentor through a VA Assistant Director 

Development Program. 

Testimony, Holly). 

Based on Mr. Holly's testimony I find that the 

Senior Executive Service position opened in Baltimore when the 

Director stepped down. When Mr. Waller contacted Mr. Holly in 

March 2014, Mr. Waller expressed an interest in the Baltimore 

position. Mr. Holly referred to Mr. Waller as "testing the 

waters" and Mr. Waller indicated her was going to discuss his 

interest with Ms. Graves, Beth McCoy and Diana Rubens. During a 

later conversation with Mr. Holly, Mr. Waller told Mr. Holly 

that once he put his name in for the Baltimore position he was 

pressured by Ms. Graves, Ms. McCoy and Ms. Rubens to take the 

position. (Testimony, Holly).

Mr. Waller initiated the first call to Ms. Graves 
18

to inquire about the Baltimore position. (AR, Tab 22 at 40, 

321, 322, Tab 66 at 150, and Testimony, Graves and Waller). 

Allison Hickey, Retired Brigadier General with the Air Force, 

who at the time in question was the VA's Under Secretary for 

Benefits, testified that she does not remember specifically but 

believes Ms. Rubens first raised the idea with her about Mr. 

Waller going to Baltimore and General Hickey was thrilled with 

the idea. (Testimony, Hickey). There is no dispute from the 

evidence that (1) at the time in question the Baltimore Regional 

Office was in dire straits; (2) there was congressional pressure 

to make things right at the Baltimore VA and (3) that Mr. Waller 

was considered by many in the VA to be a perfect fit for that 

position. (Testimony of Graves, Hickey, Holly, McCoy, Pummill, 

Rubens and OIG Testimony at Tab 22 of Graves, Hickey, Pummill).

Once Mr. Waller's name was floated for going to 

Baltimore, General Hickey testified she wanted to press ahead 

and make it happen. She did not want anything to derail Mr. 

Waller coming to Baltimore. After that was decided, General 

Hickey knows that there were some financial concerns raised by 

Mr. Waller, mainly because he was in a difficult financial 

position because of his Minnesota residence. General Hickey 

said those issues were being addressed by others in the VA, 

mainly Danny Pummill. (AR, Tab 66 at 181 – 188), Testimony, 

Hickey, Pummill and Rubens. 

Ms. Graves was the recommending official for Mr. 

Waller's reassignment to Baltimore and General Hickey signed and 

approved Ms. Graves' recommendation and sent it on to Jose 
19

Riojas, the Secretary of the VA's Chief of Staff, for final 

approval. (AR, Tab 5 at 21 – 26). After the financial details 

were reworked and subsequently approved General Hickey sent a 

letter, which was standard operating procedure, to pertinent 

members of Congress indicating that Mr. Waller was appointed to 

the Director position in Baltimore as of July 14, 2014. (AR, Tab 

66 at 180).

David Leonard testified he is currently the 

Director of the Detroit Regional Office. Mr. Leonard has known 

Ms. Graves since the late 1990's and she was his boss for 

approximately six years; they are close friends. When Ms. 

Graves was the Eastern Area Director, Detroit would have been 

one of her responsibilities and it was common for her to make 

site visits to the Regional Offices. 

In June 2014, she made a site visit to Detroit. 

On June 4, 2014, Mr. Leonard and Ms. Graves had dinner. Among 

other things, they discussed her professional situation which 

Mr. Leonard described as not good. Mr. Leonard said Ms. Graves 

was having some health issues and felt a lack of respect and 

pressure in her current position from people above her, mainly 

General Hickey. During their conversation, Ms. Graves expressed 

a desire to leave her position as Eastern Area Director. They 

discussed the Director position for Lincoln, Nebraska, which 

would be close to her family, but it was unavailable. They 

discussed St. Paul and Ms. Graves stated that this was the first 

time she brought it up with anyone. 

According to Mr. Leonard, Ms. Graves had interest 
20

in potentially going to St. Paul because she wanted out of her 

current job. Ms. Graves told Mr. Leonard she was going to 

discuss it with her ex-husband who was the former Acting Under 

Secretary for the Veterans Affairs, and she did so later that 

evening and conveyed her interest to Ms. Rubens the following 

day. (Testimony, Leonard and Graves).

General Hickey nominated Ms. Graves to be 

reassigned to the position of Regional Director in St. Paul in 

September, 2014 and that request was approved by Mr. Riojas in 

early October, 2014. General Hickey was concerned about Ms. 

Graves' declining performance in her position as the Eastern 

Director when she nominated Ms. Graves to be reassigned. 

General Hickey had no concerns about Ms. Graves being reassigned 

to St. Paul and it never crossed her mind it would not be 

appropriate for Ms. Graves to go to St. Paul because Ms. Graves 

recommended Mr. Waller's reassignment. (Testimony, Hickey). 

General Hickey testified that she still believes 

today that Mr. Waller and Ms. Graves' reassignments were in the 

best interest of the VA. In addition, General Hickey does not 

believe that the Office of Inspector General report was fair and 

that the conclusions and recommendations of the Inspector 

General report were not an appropriate result of the evidence 

that the Inspector General considered. 

General Hickey resigned her position as Under 

Secretary in October, 2015 although, according to General 

Hickey, she was not pressured to resign. She did not like the 

political attacks that were taking place at the time of her 
21

resignation and she resigned after the Inspector General report 

in an effort to, in her words, if I have them correctly, "take 

the oxygen out of the political fight." (Testimony, Hickey).

Based on Mr. Holly's testimony I do find that 

when a Senior Executive Service transfer is being proposed 

through a directed reassignment in the Veterans Benefits 

Administration, the selecting or recommending official puts 

forward the name. It then goes to the Under Secretary for 

approval who in turn forwards it for consideration and approval 

by the Secretary of the VA's Chief of Staff. (Testimony, Holly).

Those being my findings of the activities 

surrounding the events that are relevant to this appeal and now 

I will discuss my analysis of the charge. 

ANALYSIS

First off, let me comment on the credibility of 

the witnesses — with the exception of Mr. Waller and Mr. Pummill 

— I found all of the witnesses to be fully credible. As to Mr. 

Waller, I will simply state that I found some of his answers 

inconsistent with documents and other credible testimony, 

however, based on my analysis of the charge, I do not need to 

reply on his testimony. I will address any issues with Mr. 

Pummill's credibility later in my decision.

Let me start by saying that based on my findings, 

Ms. Graves did not coerce Mr. Waller to take the St. Paul 

position and Mr. Waller was clearly thought to be a great choice 

in March, 2014 for the Baltimore position. These conclusions, 

however, do not assist in deciding the charge brought against 
22

Ms. Graves. 

CHARGED CONDUCT

As I indicated earlier, Ms. Graves is charged 

with creating an appearance of impropriety based on the 

approvals of Antione Waller's reassignment to Baltimore from St. 

Paul and subsequently taking Mr. Waller's position in St. Paul 

because she failed to fully extricate herself from the 

activities surrounding Mr. Waller's assignment. I must look to 

the statutory authority under which Deputy Secretary Gibson 

brought this action in order to evaluate the charge.

The particular language of the statute at issue, 

Section 713(a)(1) of Title 38, authorizes the removal if the 

Secretary determines the performance or misconduct of the 

individual warrants it. This section gives very broad authority 

to the Secretary of Veterans Affairs in determining what 

constitutes misconduct for an employee in the Senior Executive 

Service at that Agency. And it is well established that I must 

interpret the statute based on its plain language. Hawkins v. 

United States, 469 F.3d 993, 1000 (Fed. Cir. 1996).

Based on the plain language of the statute it is 

clear that the VA has significant discretion. And it is not for 

me to determine what standards of conduct the VA should require 

its senior managers to meet. Cf. Jackson v. Department of 

Veterans Affairs, 97 M.S.P.R. 13, ¶ 14 (2004). In other words, 

the Deputy Secretary of the VA is entitled under the statute to 

determine what he requires of his core management officials, 

those in the Senior Executive Service. The VA is clearly 
23

entitled to have Senior Executives who exercise sound judgment 

and if they fail to do so the VA has the right to remove them 

from the ranks of its executives.

The charge of giving the appearance of 

impropriety is a legitimate exercise of an Agency's authority to 

prescribe certain conduct as a matter of management discretion. 

See Rayfield v. U.S. Department of Agriculture, 13 M.S.P.R. 

4444, 449 (1982) citing Douglas v. Veterans Administration, 5 

M.S.P.R. 280 (1981).

And it is important to note under Board law, that 

when charging the appearance of an impropriety, the conduct does 

not have to occur. The Agency is not required to prove that the 

Appellant actually engaged in improper conduct to support the 

charge of an appearance of impropriety. See e.g., Neuman v. 

U.S. Postal Service, 108 M.S.P.R. 200 (2008); also Suarez v. 

Department of Housing and Urban Development, 96 M.S.P.R. 213, ¶¶ 

31-32 (2004).

Relying on the Agency's choice of language in 

crafting the charge, by Ms. Graves creating an appearance of 

impropriety, that is taking the position of the person that she 

reassigned, she failed to exercise sound judgment. And then the 

Agency in its charge gave the alternative to not creating the 

appearance, that the alternative would have been to fully 

extricate herself from the activities surrounding Mr. Waller's 

reassignment. Based on the charge, the Board law and the plain 

language, Ms. Graves was required under the circumstances, even 

if she had never thought about taking the position in St. Paul 
24

until after Mr. Waller was in Baltimore, to say I should not put 

my name in for this position because even though I did not do 

anything wrong, this will look like it was done for reasons 

other than in the best interest of the Veterans. Or simply, 

this will look bad. That is what creating the appearance of an 

impropriety is. Again, let me reiterate, no bad conduct has to 

occur when the charge is based on an appearance. We've all been 

involved in situations in life where we know nothing bad 

occurred but we look at another individual in any forum as a 

reasonable person and say, but this will look bad. 

Even if a lesser standard was applied (and I am 

mentioning this even though I do not believe a lesser standard 

would apply, but a lot of the arguments from the parties relied 

on the June 5th date), that the requirement to fully extricate 

herself in order to not create an appearance of impropriety did 

not come to fruition until she knew she was interested in the 

job, and I find that date to be June 5th, based on both Mr. 

Leonard and Ms. Graves' testimony. I also point to the fact 

that when Ms. Graves testified before me she said that she 

wanted to sleep on it after she had dinner with Mr. Leonard and 

she then said that's why she didn't text Ms. Rubens until the 

morning of June 5th. When I looked back at Ms. Graves' 

testimony before the Inspector General, and although they did 

not ask her a date, they asked her when she decided she wanted 

to go to St. Paul and her response was that she woke up one 

morning and realized she needed to do something different. (AR, 

Tab 22 at 52). And I found that supported Ms. Graves' statement 
25

that June 5th was when she decided it, after her dinner with Mr. 

Leonard and seeking Mr. Leonard's advice and counsel as her 

friend. 

So again, to repeat, that even if the requirement 

had been to fully extricate herself in order not to create an 

appearance of impropriety, and it would not come to fruition 

until she knew she was interested in the job on June 5th, the 

Agency's burden still would have been met. In June and July, 

prior to Mr. Waller's reassignment being officially approved, 

Ms. Graves was copied on e-mails and in one instance Ms. Graves 

even made an inquiry in an e-mail as to how Mr. Waller should 

go about setting up a meeting with Mr. Pummill to discuss the 

financial issues. Thus, even under this lesser standard, when 

Ms. Graves received any contact or e-mails from anyone at the VA 

after June 5th, the date she decided she was going to consider 

St. Paul (it was the earliest date the evidence provided me 

with), Ms. Graves should have gone to Ms. Rubens or General 

Hickey and asked to be recused from any knowledge or involvement 

with Mr. Waller's reassignment. In other words, she should 

have, as the Agency charged, fully, and I'm emphasizing the word 

fully, extricated herself. 

So in summary, by failing to fully extricate 

herself from the activities surrounding Mr. Waller's 

reassignment before and after June 5th, coupled with taking the 

position he used to hold, equaled the appearance of an 

impropriety. Bottom line, Ms. Graves should have known taking 

the job would not look good to the public the VA serves. 
26

Ms. Graves indicated in pleadings that it was the 

culture of the VA that Senior Executive Service employees move 

around a lot and the record was clear on that. And this 

suggests the charged conduct against Ms. Graves was not actually 

misconduct. In other words, how could you create an appearance 

of misconduct if there was an accepted practice to do this 

within the VA. That argument has some appeal but in order to be 

successful Ms. Graves would have had to produce some evidence, 

not simply that it was the culture of the VA for Senior 

Executive Service officials to move around. But based on the 

charging language which was the specification in this case, the 

evidence would have to be that it was the culture in the VA for 

a Senior Executive Service official to recommend the 

reassignment of another employee and then for the recommending 

official to take the position of the individual he or she 

recommended be reassigned. And the Appellant did not present 

any evidence to support that argument. 

Accordingly, I conclude under an objective 

standard, that is, whether the actions would appear improper to 

a reasonable person with knowledge of the relevant facts under 

the circumstances, that the Agency has proven that her accepting 

the position of the individual she recommended be reassigned 

created the appearance of an impropriety which resulted in her 

failing to exercise sound judgment. Therefore, based on the 

evidence I conclude the Agency did prove by preponderant 

evidence that Ms. Graves failed to exercise sound judgment. 
27

AFFIRMATIVE DEFENSES

Ms. Graves has raised the affirmative defense

harmful procedural error and she has also raised a due process 

violation. Both relate to the allegation that the Agency failed 

to give full and impartial consideration to the Appellant's 

reply to the Deputy Secretary's Pending Action Memorandum as 

well as all the evidence of record before transferring the 

Appellant. And that the failure to do so was in violation of 

the Agency's procedures and her due process rights. The parties 

agree that the Appellant has the burden of proving her 

affirmative defenses by preponderant evidence. See 5 C.F.R. § 

1210.18(b).

Despite the fact that an Agency has proved its 

charge, an adverse action cannot be sustained if an Appellant 

establishes an affirmative defense. 

I want to note in the record that in addition to 

the affirmative defenses brought up by Ms. Graves in her filing, 

one was raised during the testimony yesterday of Deputy 

Secretary Gibson relating to an executive plan, an assessment 

plan I believe it may have been called. There was some 

confusion during the testimony when Deputy Secretary Gibson 

initially said that he relied on it. It was later determined 

that this was something that was part of the pre-hearing 

submissions and it was not something that he had at the time. 

This was one document that Ms. Graves had signed on as a 

recommending official that would have been in May of 2014 that 
28

would have identified how Mr. Waller was supposed to approach 

his position, for lack of a better word. I have determined that 

that was not a due process violation. I did not think the 

evidence was clear as to exactly when that became part of the 

record and when Ms. Graves was given that. However, even if she 

was not given it, and I do not think Deputy Secretary Gibson 

relied on it, but even if he had I would find that it was 

cumulative based on all the other documents that he had 

received.

So going back now to the affirmative defenses 

that Ms. Graves raised in her filing before the Board. The 

essential requirements of due process are prior notice and an 

opportunity to respond. Cleveland Board of Education v. 

Loudermill, 470 U.S. 532, 546 (1985). With a claim of denial of 

due process, an Appellant must prove that the Agency did not 

provide her with meaningful opportunity to respond to its 

proposal notice. See Stone v. Federal Deposit Insurance 

Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999). An Appellant 

must establish that the Agency denied her prior notice of denied 

her a meaningful opportunity to reply based on the timing, place 

and circumstance of the procedures used. Homar v. Gilbert, 520 

U.S. 924, 930 (1997).

With her claim of harmful error, an Appellant

must prove there was a law, rule or regulation applicable to the 

proceedings, that the agency did not follow it, and that if it 

had been followed, the Agency was likely to have reach ed a 

different decision on her transfer. See 5 C.F.R. §§ 
29

1201.56(c)(3), 1210.19(c). 

In this case Ms. Graves argues that the Agency 

violated its written procedure requiring that the Secretary or 

his designee will give full and impartial consideration to the 

Senior Executive's reply, if any, and all evidence of record.

In order for the opportunity to respond to be 

meaningful the deciding official must actually consider an 

employee's timely response to a proposed action. See Hodges v. 

U.S. Postal Service, 118 M.S.P.R. 591, ¶ 6 (2012). Here, Ms. 

Graves alleges Deputy Secretary Gibson had already decided to 

transfer her before she responded to the notice of pending 

action, thus failing to give her response meaningful 

consideration and thereby violating her pre-removal due process 

rights. Specifically, she argues that the Agency was under 

intense political pressure to take action against her and that 

Deputy Secretary Gibson bowed to this pressure without regard to 

her position. 

In support of her argument she cites to numerous 

public comments and other documents from individuals expressing 

their desire that she be removed from her position. (AR, Tab 66 

at 16 – 121). These documents include correspondence between 

Representative Jeff Miller and Deputy Secretary Gibson 

discussing the situation. (AR, Tab 24 at 179-182). It is 

apparent from the record in this matter that the VA was under 

political pressure to take action against Ms. Graves. 

Regardless, Deputy Secretary Gibson's testimony removes any 

doubt in my mind that he yielded to this pressure. 
30

I found his testimony very credible that he took 

his job as deciding official very seriously, that no Agency 

official pressured him to reach a particular result and that 

despite the congressional attention and, for that matter, media 

attention, he personally felt no pressure to take a particular 

action against Ms. Graves. And that he does not allow Congress 

to pressure or influence him in his performance of his official 

duties as Deputy Secretary. 

He further explained in detail his decisionmaking process and the evidence that he took into account in 

arriving at his decision when he testified in this matter. And 

in those materials he testified on a couple of occasions that he 

considered Ms. Graves' response to the Notice of Pending Action. 

(Testimony, Gibson).

Weighing the evidence of the political pressure 

against the evidence of impartiality by deciding official, I 

find that Ms. Graves has not proven that she was deprived on a 

meaningful opportunity to respond to the action before her 

transfer. I do not find sufficient reason or any reason to 

disbelieve Deputy Secretary Gibson's sworn testimony. Further, 

Deputy Secretary Gibson, in some of his responses to Congress, 

only promised an appropriate action would be taken. I have also 

considered that despite the repeated demands for her removal, 

Deputy Secretary Gibson used independent judgment when he 

decided to transfer Ms. Graves rather than remove her, 

demonstrating that he was not delivering a requested outcome. 

For the reasons stated, I conclude that Ms. 
31

Graves did not establish by preponderant evidence that the VA 

committed a harmful procedural error and I further do not find 

any due process violation. 

PENALTY

The statute under which this action was taken

limits the board's authority regarding review of the Agency's 

penalty. As set forth in 5 C.F.R. § 1210.18(d), proof of the 

Agency's charge by preponderant evidence, which I have found, 

creates a presumption that the Deputy Secretary's decision to 

transfer the Appellant was warranted. An Appellant may rebut 

this presumption by establishing that the imposed penalty was 

unreasonable under the circumstances of this case. If that 

happens then the action is reversed. 

Applying the regulation, the penalty of 

transferring Ms. Graves out of the Senior Executive Service is 

reasonable unless and until she puts forward sufficient evidence 

to prove otherwise. See 2 McCormick on Evidence, ¶¶ 342, 344 

(7th Ed.)

As mentioned earlier, in determining whether the 

penalty was unreasonable I must look to the totality of the 

circumstances, and I have considered the totality of the 

circumstances. First off, as part of that, Ms. Graves' position 

as a member of the Senior Executive Service, the specific group 

of VA federal employees that this statute was created to 

address.

As noted by the Office of Personnel Management, 

the Senior Executive Service leads America's workforce. As a 
32

keystone of the Civil Service Report Act of 1978, the Senior 

Executive Service was established to ensure that the executive 

management of the Government of the United States is responsive 

to the needs, policies, and goals of the Nation and otherwise is 

of the highest quality. These leaders possess well-honed 

executive skills and share a board perspective on government and 

a public service commitment that is grounded in the 

Constitution. Members of the Senior Executive Service serve in 

key positions just below the top presidential appointees. 

Senior Executive Service members are the major link between 

these appointees and the rest of the federal workforce. And 

that, again, was from the Office of Personnel Management’s 

website. 

The Board has recognized that the Senior 

Executive Service is a core of elite federal managers held to a 

very high standard of conduct. Baracker v. Department of the 

Interior, 70 M.S.P.R. 594, 602 (1996). And the Board's principle 

that an individual can be held to a higher standard of conduct 

based on membership in the Senior Executive Service was recently 

confirmed as still valid in Prouty v. General Services 

Administration, 122 M.S.P.R. 117, ¶ 19 (2014).

I find it reasonable for the VA to require 

meticulous ethical behavior for the member of its Senior 

Executive Service. As noted by Deputy Secretary Gibson in his 

January 6th letter, an appearance of impropriety has a potential 

to cause the American public to lose trust in the VA to make 

sound business decisions in the best interest of Veterans. (AR, 
33

Tab 1). The Deputy Secretary determined that based on Ms. 

Graves' years of service, unblemished record and her talents 

that she should still be working for the VA. (AR, Tab 1). But 

because of her failure to exercise sound judgment by creating 

the appearance of the impropriety he no longer wanted her to be 

a member of the Agency's Senior Executive Service. This, in and 

of itself, was not unreasonable. 

At this point, I could still find, despite Ms. 

Graves' unblemished record with the Agency and years of 

dedicated service, that those factors were outweighed by the 

seriousness of her misconduct, creating the appearance of an 

impropriety, and its relation to her position as a member of the 

Senior Executive Service. In fact, had the penalty removal been 

proposed I would have found that to be an unreasonable penalty 

under the totality of the circumstances, but a transfer to the 

highest General Schedule position might not have been 

unreasonable. Ms. Graves was simply and appropriately being 

held to a higher standard of conduct because of her membership 

in the Senior Executive Service. However, my inquiry cannot 

stop here if I appropriately consider the totality of the 

circumstances in this case.

Ms. Graves asserts that she received disparate 

treatment, that is the Agency failed to impose the same 

discipline on similarly situated members of the Senior Executive 

Service for similar conduct. That is how I view her disparate 

treatment allegation. This assertion speaks to the propriety of 

the penalty, not the viability of the charge itself. Although I 
34

noted earlier that the Douglas Factors are not applicable to a 

proceeding under 38 U.S.C. § 713, I find them instructive when 

considering the totality of the circumstances as to whether Ms. 

Graves has produced significant evidence to rebut the 

presumption of reasonableness. With that comes the concept of 

impermissible disparity. In other words, where the Agency 

treats similarly situated employees differently, a concept I 

find not only useful but significant in this matter. 

Ms. Graves presented the testimony of Danny 

Pummill. Mr. Pummill is currently acting as the Under Secretary 

for Benefits and his actual career position (which he held at 

the time of the events surround this appeal) is Principal Deputy 

Under Secretary for Benefits, a Senior Executive Service 

position with the VA.

Mr. Pummill gave sworn testimony to investigators 

with the Office of Inspector General investigating actions 

related to this appeal. (AR, Tab 22 at 217). Mr. Pummill's 

Office of Inspector General testimony is vital to determining 

whether Ms. Graves' transfer penalty was reasonable. Mr. 

Pummill's testimony before me was inconsistent at times with his 

Office of Inspector General testimony. For example, his 

testimony before me indicated he had very limited involvement in 

decisions involving transfers of high level VA employees and not 

much influence, but his Office of Inspector General testimony 

indicates otherwise. I find his Office of Inspector General 

testimony to be more credible. It was closer in time to the 

events in question, was much more specific and he provided 
35

numerous details as to the events related to this appeal. 

Furthermore, Mr. Pummill testified before me that his Office of 

Inspector General testimony was true and accurate. 

It is clear from numerous parts of his Office of 

Inspector General testimony that Mr. Pummill was extensively 

involved in the reassignments of Mr. Waller, Ms. Graves and Mr. 

McKendrick and Ms. Rubens. I will give some examples from his 

testimony before the Office of Inspector General, which is found 

at Tab 22 in the record and his testimony is from pages 217 

through page 238. 

When asked to describe his involvement in the 

Veterans Benefits Administration's plan to move Diana Rubens 

from the Deputy Under Secretary, Mr. Pummill explained that he 

is the principle Deputy Under Secretary and that he along with 

the staff would have conversations on all of the vacancies; who 

should fill them, when we should fill them, what were their 

qualification, what other issues, how fast we need to get them 

there, so pretty much as a matter of routine. He stated while 

he was not the final decision authority he guesses he has a big 

play in how it works. (AR, Tab 22 at 219). 

He further stated he was involved in who was 

going to be going to Philadelphia for probably about six months. 

He also discussed the process that is used for any Director move 

in the Veterans Benefits Administration. (AR, Tab 22 at 220). 

He also said Under Secretary Hickey would come to 

him and say they are getting ready to move some employees and 

his first question would be to determine what it meant from a 
36

budgetary standpoint and he would check with the fiscal office. 

He then stated, “And then we would normally have a, a 

conversation, you know, Secretary to Deputy Secretary, on, you 

know, what do you think? Should we do this? Is this the right 

person for the job? Um, I’m usually involved in it all along. I 

just don't get the formal sign off on it. That’s all.” (AR, Tab 

22 at 223). 

He reiterated this position later in his

testimony by saying that the first thing he looks at is the 

budget and then he tries to determine if it's the right guy. He 

again referred to, “we” have these questions. And in this case 

he's referring to Mr. McKendrick, we had these questions, "like, 

you know, he's not doing a really good job there and there's 

some family issues, et cetera." (AR, Tab 22 at 224). 

When talking about Mr. Waller's situation and him 

going to Baltimore, Mr. Pummill explained that Ms. Rubens would 

have probably come to him at the beginning; it was a combination 

at the beginning when they realized there were problems in 

Baltimore and the former Director stepped down. And Mr. Pummill 

explained that he knew that they had a problem at Baltimore and 

they had a vacancy, so it was both of those. And he said he 

would go to Ms. Rubens — to use his quote . . . “so, I would go 

to Diana and say I need a list of, of potential candidates. . . 

". Ms. Rubens would provide the list and they would go down the 

list and “say, okay, first of all, which, which, ones are 

willing to move, you know? . . . and later, “are they the right 

people?” (AR, Tab 22 at 226). 
37

Mr. Pummill also testified that he wanted Ms. 

Graves removed form her area office because he did not think 

that she was the right person to be the Area Director. But he 

later testified that she was “very, very successful” as a 

Regional Office Director. When he had discussions with others 

about the fact that she was not doing her job as the Area 

Director, Mr. Pummill stated, "Well, then find her a damn RO and 

put her in it. I think that's exactly what I said." (AR, Tab 22 

at 226, 227). 

The last couple of sections that I referenced 

actually did not directly relate to his testimony here, but 

again shows he was inconsistent by saying he was not involved. 

It also goes to his opinion that Ms. Graves needed to be moved 

out of the Area Director position for the Eastern Region. Later 

again talking about his involvement in moving people, he states, 

“Well, first we’ll go down the list of who, who’s our strongest 

people.” (AR, Tab 22 at 228).

It is clear from numerous parts of his testimony 

before the Office of Inspector General that Mr. Pummill was 

extensively involved in the reassignments of Mr. Waller, Ms. 

Graves, Mr. McKendrick and Ms. Rubens. In addition, Mr. Pummill 

was directly in Ms. Graves' chain of command as demonstrated by 

Ms. Graves' testimony that Mr. Pummill was her second line 

supervisor. This is further demonstrated by Mr. Pummill being 

designated as Ms. Graves' reviewing official on her 2013 and 

2014 performance reviews. (AR, Tab 66 at 130 – 146).

Based on Mr. Pummill's involvement, as 
38

demonstrated by his IG testimony, the e-mails he was involved 

in, his own testimony in this matter, and testimony from Ms. 

Graves, Ms. Rubens and Mr. Waller, there is no question that he 

had full knowledge in two situations — the situations involving 

Ms. Graves and Ms. Rubens. 

Going back to his testimony before the Office of 

Inspector General when he is discussing Ms. Graves and Ms. 

Rubens he said, “The fact that she [Ms. Rubens] went to an RO 

and Kim [Ms. Graves] went to an RO was like . . . an atomic bomb 

in VBA, but that was the kind of atomic bomb we needed to shake 

things up . . . And it took a lot of maneuvering to, to get that 

position, to get Diana to an RO, to get Kim to an RO . . . “ 

(AR, Tab 22 at 234).

So I may be repeating myself here, but again, 

based on those statements there is no question that he had full 

knowledge in Ms. Graves and Ms. Ruben’s situations, two 

situations where a member of the Senior Executive Service had 

recommended and were involved in the reassignment of other 

Senior Executive Service members and were taking the positions 

of the reassigned individuals as well as receiving relocation 

benefits in conjunction with their reassignments. Not only did 

Mr. Pummill have full knowledge, but his Inspector General 

testimony and the admissions of the Agency indicate he not only 

fully supported the actions but thought they were in the best 

interest of the VA and Veterans, at the time the actions 

occurred and now. (AR, Tabs 47 and 74). There was no evidence 

whatsoever that at any point Mr. Pummill said, time out 
39

everyone, this doesn't look good. Or to be more articulate, Ms. 

Graves and/or the Agency are creating the appearance of an 

impropriety because she was the recommending official as to Mr. 

Waller's reassignment to Baltimore and she is now taking his 

prior position. 

The Agency admitted that it set a target date of 

December 31, 2015, to consider the appropriate action to take 

against Mr. Pummill and as of last week admitted it has not 

issued any disciplinary or adverse action against Mr. Pummill in 

relation to the events arising from the Office of Inspector 

General report. (AR, Tab 47 at 123). And although having this 

knowledge, the Agency proceeded to charge and discipline Ms. 

Graves.

Deputy Secretary Gibson admitted that he believes 

Mr. Pummill may have had an opportunity to advise Ms. Graves to 

extricate herself from the process but stated whether that would 

go to lacking sound judgment is different. (Testimony, Gibson). 

I do not see it as different. 

If Ms. Graves is going to be disciplined for 

failure to exercise sound judgment by creating the appearance of 

impropriety then it would only be reasonable if any other Senior 

Executive Service members (I do note here that Diane Rubens, 

also a Senior Executive Service member, was disciplined and her 

matter is currently pending before the Board) involved in the 

same situation were disciplined as well. It is especially 

telling in this situation when the other Senior Executive 

Service member was Ms. Graves' supervisor and a direct report to 
40

General Hickey. Mr. Pummill failed to exercise sound judgment 

as much, if not more, because of his higher position, as Ms. 

Graves did. And I find the failure of Mr. Pummill to be treated 

in a similar fashion makes Ms. Graves' penalty unreasonable 

under the circumstances of this case. 

Ms. Graves also brought up Beth McCoy and the 

Corporate Senior Executive Management Office as comparators. I 

did not find enough similarities to consider Beth McCoy a valid 

comparator and there was no evidence presented to me as to who 

specifically in the Corporate Senior Executive Management Office 

processed the packages, that is, were they the same person and 

did they have the type of duties and responsibilities where they 

should have known to say something. 

I also consider it relevant in analyzing the 

totality of the circumstances that Ms. Graves' chain of command 

completely knew what the circumstances were and never once 

raised any concerns. And some to this day still say there was 

no appearance of impropriety created. It was not something Ms. 

Graves hid from them as far as her involvement with Mr. Waller's 

reassignment. Ms. Graves' chain of command — Diana Rubens, 

Danny Pummill, Allison Hickey and Jose Riojas, all of them 

except I'll note with the possible exception of Mr. Riojas 

because as noted in his testimony before the Inspector General 

he indicated his lack of familiarity with the circumstances and 

the paperwork. So with the possible exception of Mr. Riojas, 

those other individuals in Ms. Graves' chain of command knew 

what Ms. Graves' involvement was and not only did they think it 
41

was vitally important to get Mr. Waller to Baltimore, they 

thought it was important to get Ms. Graves to St. Paul. They 

not only endorsed the actions when they happened, but they 

continue to endorse the actions. 

I find the sentiment expressed by the Board in 

Prouty v. General Services Administration, 122 M.S.P.R. 117 

(2014), regarding knowledge and acquiescence, helpful in 

analyzing the totality of the circumstances regarding the 

reasonableness of the penalty.

Knowledge and acquiescence of Ms. Graves’ 

reassignment to St. Paul by Ms. Graves' chain of command are 

readily apparent and if no one in her chain said, wait, this 

will not look right when they approved her reassignment, how can 

a penalty be imposed against Ms. Graves for not saying that. 

I conclude Ms. Graves put forward sufficient 

evidence to prove the penalty of transferring her out of the 

Senior Executive Service was unreasonable. Therefore, she 

rebutted the presumption and established that the penalty was 

unreasonable under the circumstances of this case.

DECISION

Based on the decision I have announced, the

Agency's action is Reversed.

This concludes my decision pursuant to 38 U.S.C. 

§ 713(c)(2). This decision is final and not subject to further 

appeal. Thank you for your time. Safe travels everyone.

(Whereupon, at 12:12 p.m., the aboveentitled bench decision was concluded.)