UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SPECIAL COUNSEL, )

)

Complainant/ )

) Docket No. HQ12068410010

V" ) Date: M 18 1935

JOHN H. DEFORD ano )

RITCHIE R. JULIAN,!/ }

)

Respondents. )

Before

Herbert E. Ellingwood, Chairman

Maria L. Johnson, Vice Chair

Dennis M. Devaney, Member

FINAL DECISION

The Board has under consideration the Recommended Decision

of Administrative Law Judge Edward J. Reidy and related

pleadings2/ in an action initiated against respondent DeFord,

who at the time of hearing was a member of the Senior Executive

Service and Director of Administrative Services at the

Environmental Protection Agency, Research Triangle Park, North

Carolina (EPA/RTP) .3/ In his Recommended Decision Judge Reidy

concluded that, as charged in the complaint, DeFord had violated

I/ The proceeding as to respondent Julian was severed prior to

hearingc Julian was the primary witness for the Special Counsel

in the hearing on charges against respondent DeFord.

2J Respondent DeFord has excepted to the Recommended Decision

and the Special Counsel has responded.

3/ According to a letter Judge Reidy received from DeFord's

counsel, DeFord planned to retire on November 23, 1984.
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5 U.S.C. § 2302(b)(6).£/ Judge Reidy recommended a penalty of a

$750 forfeiture.

Section 2302(b)(6) prohibits the grant of any unauthorized

preference or advantage to an employee or applicant for employment for the purpose of improving or injuring the prospects of

any particular person. The prohibition applies to any employee

who has the authority to take, direct others to take, recommend,

or approve any personnel action. 5 U.S.C. § 2302(b). A

promotion is a personnel action. 5 U.S.C. § 2302(a)(2)(A)(ii).

Judge Reidy found DeFord had violated section 2302(b)(6) by

ordering Ritchie Julian, the Personnel Officer at EPA/RTP and

DeFord's subordinate, to promote one Sarah Francis Woodard, a

Program Analyst on DeFord's immediate staff, retroactively. The

promotion, effected at DeFord's order, was improper because the

4/ The Administrative Law Judge did not, in assessing this

penalty, consider two counts which, on the same set of facts,

alleged regulatory and rule violations- In fact, he dismissed

these counts as1 multiplicative. We do not need to address the

issue of whether his ruling was erroneous because it is

decisionally insignificant in this case. Given the close

relationship between the statutory and non-statutory violations

alleged herein, the allegations of the non-statutory violations

merely offer alternate theories for why the single action taken

was not in accordance with law. We make this determination fully

aware that, in a different case, multiple violations of Vaw

committed in the course of taking a single action may justify the

imposition of a more serious penalty than a single violation of

law. Cf. Special Counsel v. Harvey, MSPB Docket No.

HQ12068310021 (Dec. 6, 1984)„
»--3-

position had not been classified at the effective date of the

promotion. DeFord believed the retroactive promotion would

protect Ms. Woodard from downgrading should a reduction in force

(RIF) be announced. The record fully supports Judge Reidy's

conclusion and we adopt his summaries of the evidence and

subsidiary findings as substantially correct.5/

DeFord excepts to the Recommended Decision on the grounds

that. (1) the record does not support the conclusion that DeFord

ordered Julian to promote Ms. Woodard; (2) DeFord is not

j. ^o^v^o-u^ie because Julian did not advise him the promotion was

improper; (3) the promotion did not give Ms. Woodard a preference or advantage; and (4) if there was a violation of

section 2302(b)(6), no penalty should attach under the

circumstances. Upon a review of the record, the Board finds

these exceptions meritless., The record fully supports Judge

t '

s conclusions that DeFord precipitously ordered Ms.

d'3 retroactive promotion to give her an advantage in a

potential RIF.

I

THE EVIDENCE SUPPORTS THE FINDING THAT

DEFORD ORDERED JULIAN TO PROMOTE

.MS, WOODARD

DcFc-r-3's challenge of the finding that he ordered Ms.

Woodard's promotion is two-pronged. He contends first that

5/ Judge Reidy summarized the testimony at Appendix B to his

Recommended Decision. The referenc?e to one "Moody" in the summary

of the testimony of Ms. Westmoreland is incorrect. The error is

not decisionally significant. The transcript makes clear that the

reference was to "Julian."
Julian's testimony that DeTrc; ' '..••<••• :;~; * .iim to promote Ms. Woodard

is inherently implausible, -/*'<.'

 rr--:>nd that the evidence of record

refutes Julian's claim. We ! nothing inherently implausible

in Julian's testimony and V..-L IK! that the preponderance of the

evidence supports Judge eidy \, finding.

A. Julian's Testimony

Judge Reidy found credible Julian's testimony that at a

meeting on August 31 DeFord ordered him to promote Ms. Woodard.

Judge Reidy stated that his analysis of the events surrounding

the promotion was based on his observation of the witnesses. We

depend heavily on a presiding official's assessment of

credibility and alive due deference to Judge Reidy's reliance on

Julian's credibility. Weaver v. Department of Navy, 2 MSPB

297 (?.980). ~ '

DeFord offers no persuasive reasons to overturn Judge

Reidy's credibility finding. DeFord argues that Judge Reidy

should have rejected Julian's testim. t if he thought some of tlie

testimony was false. DeFord cites Kennedy v. Aro, Inc., 447

F.Supp. 1083 (E.D. Tenn. 1977), citing Norfolk & W.Ry. Co. v.

McKenzle, 116 F.2d 632 (6th Cir. 1941), for the "rule of law"

that if a witness is found to have made a statement under oath

that is afterward found to have been false, the trier of fact has

every right to distrust the witness. Both of those cases state

clearly that the "rule of law" is flexible and permissive, not

mandatory. Judge Reidy recognized discrepancies in Julian's

testimony, but determined nevertheless that Julian's account of

the August 31 meeting with DeFord was credible.
ow ^ ^TM

Nor do we v.in^ •Jud-ye, '.Reidy's reliance on other evidence and

dcv.-umentat.ion •• u \oort his finding of Julian's credibility

erroneous. 3* i's colleague, Edwin R. Strickland, Supervisory

Personnel Wte.n,.:• r ••.- ent Spec4,-.list EPA/RTP, testified that the

morning of Auaf : t 31 when

 (u complained to Julian about a

r»rojr^/*;ion witVio 't. doc^ent?k';.ion, Julian told him that he was

cicta^j anther orders from De?orcl. Diane Westmoreland, Personnel

Staffing Specialist EPA/RTP, also testified that when on August

31 s>.e challenged Julian about the promotion, Julian said he

act*.! on orders from DeFord,, Thus, two employees in the

Personnel Office testified as to what Julian told them after his

meeting with DeFord. Mie Request for Promotion (SF-52) bearing a

date cjc August-31 was t.l*« first documentation in the Personnel

Offi-' The SF-52 oarr.s from DeFord the afterr.r jn of August 31

•n:'id £. an effec Iva date of August 23.

, rd next challenges Judge Reidy's reliance on an absence

••-•,

: j-".c*-.ivc in judging Julian credible.S/ DsFord's affort to

5:>••• ,yj that Julian was motivated to testify falsely against him is

'uapersuasive. DeFord relies on "institutional animosity" and

X

DeFord's admonitions to Julian concerning his office decorum and

his performance. The testimony on "institutional animosity" i/s

4-r^ 4nenhc;fa.ntial to attribute ill will to Julian. Tb-5

admonitions by DeFord occurred in 1982 and 1983. Although Julian

might have had reason to accuse DeFord falsely, Julian's hearing

6/ Judge Reidy relied on the proposed settlement between Julian

and the Special Counsel in which Julian agreed to serve a 90-day

suspension.
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': st.iipo«y as to the August 31 meeting with DeFord is consistent

# J;h what be told Strickland and Ms. Westmoreland on August 31,

1981, prior to any admonitions from DeFord.

Bo 'flie Other Evidence Concerning the Promotion

After challenging Judge Reidy's judgment in appraising

Julian's testimony that DeFord ordered him to promote Ms.

Woodard, DeFord attempts to show that Julian's testimony was

"overwhelmingly" refuted by other evidence of record. DeFord has

combed the record for testimony contradicting Julian's testimony

*r.h?.t PeFord ordered him to promote Ms. Woodard.

The recited evidence does not overcome Judge Reidy's finding

that Julian's testimony is credible. Two witnesses (Frances

Bradow and Houston Blair) testified as to Julian's statements

during an EPA/RTP meeting on a discrimination complaint by Blair

against DeFord and Julian arising from Ms. Woodard's promotion.

They testified that Julian assumed responsibility for the

promotion and said it had been done properly. Julian explained

in effect that he was protecting DeFord in an internal EEO matter

where all the participants were subordinate to DeFord.7/ The

explanation is plausible and we accept it. Moreover, countering

the statements made at the EEO meeting were Julian's statements

made earlier to his colleagues in the Personnel Office on August

31.

T/ Blair also testified that Julian said he would not let any

of his staff be responsible for the promotion. This is

consistent with Ms. Westmoreland's testimony that Julian told her

he had signed the SF-52 so that no one on his staff would have to

be responsible.
-7-

We are also unpersuaded by DeFord's argument that Julian's

testimony that he acted out of fear of DeFord is unbelievable and

thus casts doubt on Judge Reidy's finding Julian's testimony

credible. Whether Julian acted out of fear or as a

"good soldier" is irrelevant to whether DeFord ordered him to

promote Ms. Woodard.

Also irrelevant to the question of whether DeFord ordered

Julian on August 31 to promote Ms. Woodard is the evidence of

DeFord's informal approaches to Julian in the spring of 1981.

Contrary to DeFord's contention that the promotion was well

underway and routine, these informal discussions came to

nothing.8/ DeFord had never made even an oral request for Ms.

Woodard's promotion. The Personnel Office had no documentation

of any kind on a promotion for Ms. Woodard until August 31. The

position was not classified before August 31.

In contrast, the events on August 28 and August 31 directly

relate the effort to promote Ms. Woodard to DeFord's knowledge

that she would be downgraded if the simulated RIP were effected.

He asserted on August 28 tliat she had already been promoted. He

sent the SF-52 on August 31 after his meeting with Julian.

B/ After talking with DeFord and Ms. Woodard about her duties,

Julian had concluded, based on twenty years experience, that her

duties did not warrant a promotion. He doubted that her current

duties warranted a GS-12. For several years her grade 12 had been

under question, a fact that DeFord knew.
-8-

DePord contends that Judge Reidy's finding on the order to

promote fails because there was no motive for DeFord to promote

Ms. Woodard* To violate section 2302(b)(6), DePord must have

given the order "for the purpose" of advantaging Ms. Woodard.

We think the record shows plainly the reason for DeFord's

precipitous actions. He considered Ms. Woodard a valuable

employee. In the spring she had asked him for a promotion to

a grade 13. She had not been promoted. When he saw the

simulated RIF, he anticipated that she would be "bumped" and

reduced in grade to a GS-11. He wanted to protect her from the

grade reduction.

In addition, the simulated RIF was based on the abolition of

a GS-12 position in the office of Dr. Thomas Houser, the senior

research and development official at EPA/RTP, whose office DeFord

served. The incumbent of that position would have "bumped" Ms.

Woodard from her GS-12 position. DeFord could have wanted Ms.

Woodard's promotion to be in effect as long as possible prior to

any announcement of a RIF in Dr. Houser's office in order to

disassociate heir promotion from the RIF and to avoid the

appearance that he had protected one of his staff at the expense

of one of Dr. Houser's staff.

II

DEFORD IS RESPONSIBLE FOR THE PROMOTION.

DeFord tries to absolve himself of responsibility for the

*:;

execution of his order on the ground that Julian failed to tell

him the promotion was improper. The sequence of events and
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DeFord's meeting with Julian show that DeFord was interested

in effecting the promotion retroactivelyTM

DeFord told Strickland on Friday August 28 that the

promotion had already been accomplished and was in effect/ a

statement that was not true. At the meeting with Julian on

Monday August 31, DeFord told him that he (DeFord) had decided

the job was a 13 and he ordered Julian to promote Ms. Woodard.

DeFord's manner brooked no opposition. DeFord had the authority

to promote Ms. Woodard. He sent Julian an SF-52 showing the

^ :'. i':-. was to be retroactive. Not only did DeFord's manner

inhibit opposition, but also it is highly improbable under all

the circumstances that DeFord would have listened to or heeded

advice that the promotion was improper.9/

Under his delegated authority to prevent prohibited

personnel practices (5 U.S.C. § 2302(c)), DeFord had an

obligation to ascertain the requirements o£ law before he told

Strickland on August 28 that Ms. Woodard had been promoted

effective August 23 and before he ordered Julian on August 31 to

promote her retroactively.

«s promotion violated 5 C.F.R. §

5 i 1 .7u'i (a) (1) (ii), (2), and (4) a($d Federal Personnel Manual,

Subchap 7, 7-1. Retroactive position classification is prohibited. The personnel action promoting her must occur within a

reasonable time after the classification. The classification of

Ms. Woodard "s position was made retroactive to August 21 to

accommodate the retroactive promotion. The testimony of

DeFord's expert witness was consistent with these regulations.

He testified that there is no prohibition on a retroactive career

promotion for a position that is already established and

classified. The Special Counsel proved the promotion as it was

effected was unauthorized.
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III

THE PURPOSE OF THE PROMOTION WAS TO

ADVANTAGE MS. WOODARD.

^a argues that Ms. Woodard received no preference or

advantage and therefore no violation occurred. Section

2302(b)(6 ) does not require that the unauthorized promotion

result in an advantage, but only that the purpose be to give an

advantage.

DeFord granted Ms. Woodard a retroactive promotion for the

purpose of advantaging her. The fact that the wrongful promotion

may not have advantaged her as DeFord had anticipated because the

RIF never occurred does not make his grant of the promotion any

less a violation of section 2302(b)(6). DeFord ordered Ms.

Woodard's unauthorized retroactive promotion; DeFord's purpose

was to protect her from a downgrade; therefore, DeFord violated

section 2302(b)(6).

IV

THE RECOMMENDED PENALTY IS APPROPRIATE.

Before recommending a penalty, Judge Reidy carefully

reviewed the circumstances of record, including information and

belief that DeFord had retired fiom federal service on November

23, 1984. He concluded that the most practical penalty would be

a forfeiture. Judge Reidy used the teachings of Douglas v.

Veterans Administration, 5 MSPB 313 (1981), as a guideline in

recommending the amount of the forfeiture. Among other factors,
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Judge Reidy considered that DeFord's past disciplinary record was

spotless and his performance and dependability unassailable.

Judge Reidy recommended a $750 penalty. We adopt the

recommendation.

V

CONCLUSION

We adopt and incorporate the recommended decision except as

modified or supplemented nerein. Accordingly, we find that John

H. DeFord violated 5 U.S.C. § 2302(b)(6) by ordering the

retroactive promotion of Sarah Woodard to protect her from a

potential downgrade in a reduction in force and we impose a

forfeiture in the amount of $750. Within 30 days of issuance of

this final decision, DeFord shall remit a check or similar

*

instrument in the amount of $750 made payable to the U-S. Merit

Systems Protection Board, and addressed to the U.S. Merit Systems

Protection Board, Office of the Comptroller, 1120 Vermont Avenue,

N.W., Washington, D.C. 20419.

This is the final order of the Merit Systems Protection

Board. Respondent DeFord is hereby notified of the right frfo seek

judicial review of the Board's action as provided in 5 U.S.C.

§ I207(c).

fOR THE BOARDS _____

Robert S. Taylor

Washington, D.C. Clerk of the Board