UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL LEONARD,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-0752-14-0301-I-3

DATE: January 3, 2017

THIS ORDER IS NONPRECEDENTIAL1

Justin Randolph, Esquire, Chicago, Illinois, for the appellant.

Janet M. Kyte, Esquire, and Robert Vega, Esquire, Hines, Illinois, for the 

agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

sustained his removal. For the reasons discussed below, we GRANT the 

appellant’s petition for review, AFFIRM the administrative judge’s finding that 

the agency proved its charge of failure to follow established police procedures, 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

VACATE the administrative judge’s findings concerning specification 4 of the 

failure to perform the duties of the position charge, the reasonableness of the 

penalty, and the appellant’s affirmative defense of retaliation, and REMAND the 

case to the Board’s regional office for further adjudication in accordance with this 

Remand Order. 

BACKGROUND

¶2 Effective March 8, 2013, the agency removed the appellant from his 

Criminal Investigator position with the Hines Veterans Administration (VA)

Hospital Police Service based on the charges of lack of candor, failure to properly 

perform the duties of his position, failure to follow established police procedures, 

and poor judgment as a police officer. Leonard v. Department of Veterans 

Affairs, MSPB Docket No. CH-0752-14-0301-I-1, Initial Appeal File (IAF), Tab 8 

at 26-28, 62-65. The appellant filed an appeal challenging his removal and 

raising an affirmative defense of retaliation for prior equal employment 

opportunity (EEO) activity. IAF, Tab 1 at 4; Leonard v. Department of Veterans 

Affairs, MSPB Docket No. CH‐0752-14-0301-I-3, Appeal File (I-3 AF), Tab 13 

at 7. The appellant also raised, but subsequently withdrew, an affirmative 

defense of harmful error. IAF, Tab 1 at 4; I-3 AF, Tab 13 at 7. 

¶3 After holding a hearing, the administrative judge issued an initial decision 

affirming the agency’s action. I-3 AF, Tab 26, Initial Decision (ID). The 

administrative judge did not sustain the agency’s lack of candor charge. ID

at 3‐5. The administrative judge merged the charge of poor judgment as a police 

officer into the charges of failure to properly perform the duties of the position

and failure to follow established police procedures. 2 ID at 5 n.2, 16 n.8. She 

sustained the failure to properly perform the duties of the position charge based 

on one of the four specifications and the failure to follow established police 

 

2 On review, neither party challenges the administrative judge’s decision to merge 

the charges. 
3

procedures charge based on three of the four specifications. ID at 5-19. Further, 

she found that there was a nexus between the sustained charges and the efficiency 

of the service and that removal was within the tolerable limits of reasonableness. 

ID at 22-23. Finally, she found that the appellant did not prove his affirmative 

defense of retaliation for prior EEO activity. ID at 19-21. 

¶4 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 3. The agency has opposed the appellant’s petition. PFR File, Tab 5. 

The appellant has filed an untimely reply. 3 PFR File, Tab 6. 

ANALYSIS

Remand is necessary for additional findings concerning whether the agency 

proved its charge of failure to properly perform the duties of the position. 

¶5 The administrative judge did not sustain specifications 1 or 2 of this charge 

and the agency withdrew specification 3. ID at 5-9. The administrative judge 

sustained specification 4, in which the agency alleged that in October 2012, the 

Acting Police Chief, who was the proposing official, discussed with the appellant 

his concerns regarding the appellant’s failure to perform independent 

investigations as to Reports of Survey4of missing agency property, and instructed 

him that he must conduct proper investigations, including interviews of relevant 

witnesses. IAF, Tab 8 at 63. The agency alleged that the appellant continued to 

conduct investigations of missing property without any independent 

investigation. Id. 

¶6 The administrative judge found that the agency proved that the appellant 

failed to conduct independent investigations of missing property on multiple 

occasions after being instructed to do so. ID at 11-12. We agree with the 

 

3 We have not considered the appellant’s reply, which was untimely filed on June 13, 

2016, more than 10 days after the agency served its response on May 31, 2016, and 

which is not accompanied by a motion showing good cause for the untimely filing. PFR 

File, Tabs 4-6; see 5 C.F.R. § 1201.114(e)-(g). 

4 A Report of Survey is an inventory document that is generated when Government 

property is reported as lost or stolen. Hearing Transcript at 42-43, 66, 197-98, 379-80. 
4

appellant that this was an error because the agency only offered one example of 

his failure to independently investigate, which was an October 2012 Report of 

Survey.5 PFR File, Tab 3 at 13‐14. The administrative judge found that it was 

much more likely than not that the appellant conducted more than one 

investigation in the period between October 2012 and January 10, 2013, when the 

agency proposed his removal. ID at 11-12. In so finding, she relied on the 

appellant’s general testimony “regarding the recurring nature and large number of 

these property losses and the little time he had to investigate.” ID at 11. 

However, beyond the October 2012 Report of Survey, it is not clear from the 

record how many Reports of Survey the appellant completed after the 

October 2012 conversation or whether he conducted independent investigations in 

connection with any such Reports of Survey. Moreover, both the appellant and 

his supervisor testified that, at some point prior to the appellant’s removal, 

investigations of missing property were reassigned to the police patrol. PFR File,

Tab 3, Hearing Transcript (HT) at 51‐52, 121. Accordingly, we vacate the 

administrative judge’s finding that the agency proved that the appellant failed to 

conduct independent investigations on multiple occasions after October 2012. 

¶7 Additionally, in sustaining specification 4, the administrative judge relied 

on the proposing official’s testimony that, during an October 2012 conversation, 

he directed the appellant to conduct independent investigations regarding Reports 

of Survey, including interviewing witnesses and showing all work leading to and 

supporting his findings, but that the appellant failed to change how he conducted 

investigations. ID at 10. The administrative judge further cited the proposing 

official’s testimony that he spoke to the appellant at the urging of the head of 

logistics, who previously had discussed these concerns with the appellant. Id. 

 

5

The initial decision erroneously references this Report of Survey as being dated 

December 2012, instead of October 2012. ID at 10; IAF, Tab 9 at 91. 
5

The administrative judge also found that the appellant “did not dispute he failed 

to follow agency direction to conduct independent investigations.” ID at 11. 

¶8 On review, the appellant contends that the administrative judge fa iled to 

consider his testimony to the contrary and make proper credibility determinations. 

PFR File, Tab 3 at 10. We agree. The record reflects that the appellant disputed 

the proposing official’s testimony concerning the substance of their October 2012

conversation. He testified that the proposing official did not mention the need for 

him to conduct independent investigations, but rather questioned him about the 

Reports of Survey appearing redundant. HT at 119‐20. He further testified that 

the proposing official was not “abreast of the system” concerning the way Reports 

of Survey were handled and that he explained to the proposing official that, under 

the system in place, he sometimes did extensive and sometimes limited 

investigations based on information from the Board of Survey. 6 HT at 119-21. 

According to the appellant, under the system in place, the agency’s Board of 

Survey first looked at the Reports of Survey and then determined whether any 

further investigation was needed by the appellant. IAF, Tab 8 at 46-47. The 

appellant contends that the proposing official did not direct him to alter this 

process. Id. 

¶9 The appellant also disputed that the head of logistics previously had talked 

to him about how he conducted investigations and testified that he only had 

expressed concern that the Reports of Survey be completed more quickly. HT 

at 116-17, 138-39. The appellant further asserts that the administrative judge 

failed to consider his supervisor’s testimony that, before the arrival of the 

 

6

The role and involvement of the Board of Survey in investigating missing property is 

unclear from the record. The parties dispute whether the Board of Survey investigated 

missing property, the scope of any such investigation, and whether the appellant was 

required to conduct an independent investigation after receiving a finding from the 

Board of Survey that property was lost due to inadequate inventory management 

control, as in the case of the October 2012 Report of Survey. HT at 288-97, 429-35; 

IAF, Tab 8 at 46-47. 
6

proposing official, there were no complaints about the appellant’s investigations 

and that the prior head of logistics had commented that the appellant’s 

investigations were detailed. PFR File, Tab 3 at 9; HT at 50-51. 

¶10 Accordingly, we remand the appeal to the administrative judge to make 

credibility findings concerning whether, during the October 2012 conversation, 

the proposing official directed the appellant to conduct independent 

investigations, including witness interviews, and, if so, whether the appellant 

failed to conduct a proper investigation of the October 2012 Report of Survey. 

See, e.g., Posey v. Department of Defense, 106 M.S.P.R. 472, ¶ 13 (2007) (stating 

that the administrative judge, who heard the testimony firsthand and observed the 

demeanor of the witnesses, is in the best position to assess credibility). 

¶11 The appellant’s remaining arguments concerning this charge are 

unpersuasive. First, he argues that he was prejudiced because the deciding 

official testified regarding investigation procedures for Reports of Survey set 

forth in the national policy without producing a copy of the policy. 7 PFR File, 

Tab 3 at 10. However, the administrative judge did not rely on any testimony or 

procedures regarding the national policy in making her findings. ID at 11. 

Further, the deciding official testified that, in sustaining this specification, she 

considered the appellant’s failure to abide by the directions of the proposing 

official to conduct independent investigations, not any alleged failure to follow 

the procedures in the national policy. HT at 384-85. Second, he argues that the 

charge is properly construed as a failure to follow instructions charge and the 

agency failed to meet its burden of proving the elements of such a charge. PFR 

File, Tab 3 at 11-13. We find such a distinction is immaterial because the 

 

7

The appellant has submitted a copy of the national policy for the first time on review. 

PFR File, Tab 3 at 476-86. We have not considered this document because the 

appellant has not shown that it was unavailable before the record closed despite his due 

diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. 

§ 1201.115(d). 
7

appellant’s failure to perform his duties as directed by his supervisors amounts to 

a failure to perform his positions duties. 

The administrative judge correctly found that the agency proved the charge of 

failure to follow established police procedures. 

¶12 The administrative judge sustained three of the four specifications 

supporting the agency’s charge of failure to follow police procedures, which 

relate to the appellant’s failure to comply with agency policy to be in possession 

of his assigned weapon at all times while on duty. ID at 12‐18. As described in 

the initial decision, in specification 1, the agency alleged that the appellant 

violated this policy on 51 separate dates between October 2010 and July 2012, 

when he was not armed for all hours he was on duty. IAF, Tab 8 at 63. As the 

initial decision indicates, in specification 2, the agency alleged that the appellant 

violated this policy on July 2, 2012, when he responded to a felony arrest scene 

unarmed. Id. As set forth in the initial decision, in specification 3, the agency 

alleged that, after being instructed on November 16, 2012, that he must be armed 

at all times while on duty, on November 21, 2012, the appellant was not armed 

for all hours while on duty.8 Id. at 64. 

¶13 Regarding the first specification, the administrative judge found that the 

appellant admitted to being unarmed on the majority of the dates set forth in the 

specification. ID at 14-15. Regarding the second specification, the 

administrative judge found that the appellant did not dispute that he was unarmed 

at the felony arrest scene on July 2, 2012. ID at 16. Regarding the third 

specification, the administrative judge found that the attendance records and 

weapons log indicated that the appellant was not armed for all hours while he was 

on duty on November 21, 2012.9 ID at 17-18. 

 

8

Specification 3 also charged the appellant with not being armed for all hours he was 

on duty on December 13, 2012, IAF, Tab 8 at 64, but the agency withdrew this date at 

the hearing, I-3 AF, Tab 23, Hearing Compact Disc (HCD), track 1 at 46:00.

9

The administrative judge found that the agency proved that the appellant violated the 

weapons policy when he was unarmed at times on December 13, 2012, despite the fact 
8

¶14 On review, the appellant argues, for the first time, that he was not required 

to follow the weapons policies because his position description indicates that such 

policies are merely guidelines for criminal investigators. PFR File, Tab 3 at 15. 

We generally will not consider this argument because the appellant has not shown 

that he could not have raised it before the administrative judge. See Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. 

§ 1201.115(d). He also contends that the agency failed to show certain 

exceptions to the policy did not apply and the administrative judge incorrectly 

shifted the burden to him to show that they did apply. PFR File, Tab 3 at 16. 

However, the agency’s burden of proving its charges by preponderant evidence 

does not require it to show that each and every exception to the rule did not apply 

for each date. See 5 C.F.R. § 1201.4(q) (defining preponderant evidence as the 

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 also 5 C.F.R. § 1201.56(b)(1)(ii). 

¶15 Regarding specification 2, the appellant disputes, as he did below, whether 

he technically “responded” to the scene or was a “responding officer” because he 

contends that the suspects had been apprehended prior to his arrival. PFR File, 

Tab 3 at 17. He also argues that the agency failed to show that, as a criminal 

investigator, he was required to have a weapon at the scene. Id. The 

administrative judge found that the relevant policy required the appellant to be in 

possession of his weapon while on duty on department property. ID at 13. The 

appellant does not dispute that he was present at the scene unarmed. Nor did he 

dispute that the incident occurred on department property. Although he testified 

that he was on the way to a funeral when he was called to the scene, HT at 137,

the administrative judge credited the proposing official’s testimony that the 

 

that the agency withdrew this specification as to this date. ID at 17-18. Accordingly, 

we vacate this finding. 
9

appellant either should not have reported to the scene unarmed or should have 

obtained a weapon before responding, ID at 16-17. 

¶16 The appellant also reiterates his argument that the agency failed to show 

that his failure to have a weapon at the scene on July 2, 2012, put others at risk 

because the suspects already had been detained. PFR File, Tab 3 at 17. The 

administrative judge considered this argument, but found that the appellant’s 

decision to show up at a felony arrest scene unarmed rendered him vulnerable, 

without means of defending himself and others if the situation changed, thereby 

putting himself and other people at risk. ID at 17. Thus, the appellant’s 

argument constitutes mere disagreement with the administrative judge’s findings, 

and does not provide a basis for reversal. See Crosby v. U.S. Postal Service, 

74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative 

judge’s findings when she considered the evidence as a whole, drew appropriate 

inferences, and made reasoned conclusions); see also Broughton v. Department of

Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same). 

¶17 Lastly, we find unavailing the appellant’s contention that specification 3 

should be construed as a charge of failure to follow instructions. PFR File, Tab 3 

at 17-19. It is well settled that the Board adjudicates the charges invoked by the 

agency as described in the agency’s proposal and decision notices. See, e.g., 

Rackers v. Department of Justice, 79 M.S.P.R. 262, 276 (1998), aff’d, 194 F.3d 

1336 (Fed. Cir. 1999) (Table); Gottlieb v. Veterans Administration, 39 M.S.P.R. 

606, 609 (1989). We agree with the administrative judge that the agency proved 

that the appellant was not armed for all hours while on duty on November 21,

2012. ID at 17-18. The record reflects that he worked from 8 a.m. to 4 p.m., but 

only checked out his weapon from 7:44 to 13:03. IAF, Tab 11 at 57, 66. Thus, 

he was unarmed while on duty for about 3 hours. Accordingly, the administrative 

judge properly sustained the charge based on the three sustained specifications. 

See, e.g., Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 

1990) (finding that, when more than one event or factual specification supports a 
10

single charge, the agency need not prove all of the specifications; rather, proof of 

one or more of the supporting specifications is sufficient to sustain the charge). 

We vacate the administrative judge’s penalty analysis and remand the appeal for 

reconsideration of the reasonableness of the penalty. 

¶18 The administrative judge deferred to the agency’s decision to remove the 

appellant, relying on the deciding official’s testimony that she would have

removed the appellant even absent the lack of candor charge. ID at 22-23. On 

review, the appellant argues that the administrative judge should have considered 

whether removal was reasonable in light of the sustained charges and 

specifications and mitigating factors.10 PFR File, Tab 3 at 24-30. We agree. 

¶19 When an agency fails to prove all of its charges, the administrative judge 

must consider carefully whether the sustained charges merit the penalty imposed 

by the agency. Reid v. Department of the Navy, 118 M.S.P.R. 396, ¶ 24 (2012). 

In such circumstances, if the agency does not indicate that it desires a lesser 

penalty to be imposed on fewer charges, the Board may mitigate to the maximum 

reasonable penalty if a careful balancing of the mitigating factors warrants, or the 

Board may impose the same penalty imposed by the agency based on justification 

of that penalty as the maximum reasonable penalty after balancing those f actors. 

Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999); Parker v. U.S. Postal 

Service, 111 M.S.P.R. 510, ¶ 6, aff’d, 355 F. App’x 410 (Fed. Cir. 2009). An 

agency’s failure to prove all of its supporting specifications may require, or 

contribute to, a finding that the agency’s penalty is not reasonable. See Payne v. 

U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996). 

¶20 Here, the lack of candor charge was not sustained, and three of the four

specifications underlying the failure to properly perform the duties of the position 

 

10 The appellant also argues that the agency failed to prove a nexus between the 

sustained misconduct and the efficiency of the service because there is no clear 

relationship between the sustained specifications and his job duties. PFR File, Tab 3

at 21-24. We find that the appellant’s assertions on review do not demonstrate error in 

the administrative judge’s well-reasoned analysis on this point. ID at 22. 
11

charge and one of the four specifications underlying the failure to follow 

established police procedures charge were not sustained or withdrawn. The 

agency also withdrew one of the dates underlying specification 3 of its failure to 

follow established police procedures charge. Although the administrative judge 

cited the deciding official’s testimony that she would have removed the appellant 

absent the lack of candor charge, such testimony does not take into consideration 

the fact that the agency failed to prove or withdrew many of the specifications in 

support of the sustained charges. Thus, it does not establish that the agency 

would have imposed the same penalty for the sustained specifications because 

there is a significant difference between the misconduct that the agency specified 

and the misconduct ultimately sustained. Accordingly, on remand, the 

administrative judge must determine the maximum reasonable penalty appropriate 

for the sustained charges and specifications. 

¶21 In assessing the reasonableness of the penalty, the administrative judge 

should consider such factors as the nature and seriousness of the offense, the 

employee’s past disciplinary record, the consistency of the penalty with the 

agency’s table of penalties, and the consistency of the penalty with those imposed 

on other employees who engaged in similar misconduct. See O’Lague v. 

Department of Veterans Affairs, 123 M.S.P.R. 340, ¶ 18 (2016); Douglas v. 

Veterans Administration, 5 M.S.P.R. 280, 305 (1981). In particular, the 

administrative judge should consider whether the appellant’s failure to have his 

weapon in his possession at all times while on duty prior to November 16, 2012, 

the dates underlying specifications 1 and 2 of the agency’s failure to follow 

police procedures charge, constituted a common practice, and whether other 

employees were disciplined for such violations. 

¶22 It appears undisputed that the agency’s weapons policy, which required 

officers to be armed at all times while on duty, was not strictly observed or 

enforced prior to November 16, 2012, several months after the proposing official 

became the Acting Police Chief. The proposing official testified that after he 
12

became Acting Police Chief in May 2012, he observed that the agency’s weapons 

policy was not being followed and a few officers did not check out their firearms 

on a daily basis. HT at 175, 187. As a result, on November 16, 2012, he sent an 

email to seven officers, including the appellant, expressing as much. HT at 187; 

IAF, Tab 12 at 5. In his email, he stated, “[m]any of you rarely arm up upon 

arriving to work” and indicated that moving forward the policy would be enforced 

and future violations would result in discipline. IAF, Tab 12 at 5. 

¶23 The proposing official further testified that he did not discipline or propose 

discipline for any other officer for violating this policy. HT at 335. The deciding 

official concurred that she had not dealt with any disciplinary actions relating to 

any officer being disciplined for violating the weapons policy, but that she 

would not have seen disciplinary actions of less than a 14-day suspension. HT 

at 445‐46. The appellant’s supervisor also testified that the weapons policy 

was not strictly followed prior to the proposing official’s arrival and he was not 

aware of anyone who had ever been disciplined for failing to follow it. HT at 46. 

Notwithstanding these circumstances, the agency charged the appellant with 

violating the weapons policy on numerous dates prior to November 16, 2012, 

when it began enforcing the policy. IAF, Tab 8 at 63. 

¶24 The appellant raised a claim of disparate penalties below, which the 

administrative judge acknowledged in the prehearing order, I-3 AF, Tab 13 at 6-7, 

but did not address in the initial decision. The record does not contain facts 

sufficient to ascertain what penalty, if any, the agency has imposed for conduct 

similar to the sustained charges. Lewis v. Department of Veterans Affairs,

113 M.S.P.S. 657, ¶ 15 (2010). Accordingly, on remand, the administrative judge 

shall provide the parties an opportunity to submit supplemental evidence and 

argument concerning the circumstances and factors relevant to the determination 

of a reasonable penalty. 
13

The administrative judge failed to assess all relevant evidence concerning the 

appellant’s affirmative defense of retaliation. 

¶25 The administrative judge found that the appellant failed to provide any 

direct or circumstantial evidence of retaliation for his prior EEO activity; namely 

the filing of a formal complaint of discrimination on February 25, 2013,11 because 

both the proposing and deciding officials testified that they were not aware of this 

activity. ID at 20-21. The administrative judge further found that the appellant 

provided no other evidence of suspicious timing, ambiguous statements, behavior 

toward or comments directed at other employees with prior EEO activity, or other 

facts from which an inference of retaliatory intent might be drawn. ID at 21. 

¶26 On review, the appellant contends that the administrative judge improperly 

found that the proposing and deciding officials were not aware of his prior EEO 

activity. PFR File, Tab 3 at 20. The record contains conflicting evidence 

concerning whether the proposing official was aware of the appellant’s prior EEO 

activity. The appellant testified that he filed an EEO complaint in mid-2012, 

concerning the lack of a proper investigation of an incident between him and a 

coworker who had threatened to kill him. HT at 95, 141-44. According to the 

appellant, the proposing official was aware of his 2012 EEO complaint because 

he participated in efforts to informally resolve it through mediation. HT at 143. 

The appellant’s supervisor testified that he participated in a mediation of the 

appellant’s 2012 EEO complaint and discussed the appellant’s requested 

settlement with the proposing official. HT at 56-58. According to the appellant’s 

supervisor, the proposing official rejected the appellant’s proposed settlement and 

removed the appellant’s supervisor from further participation in the mediation. 

HT at 57-58. The proposing official, however, testified that he was not aware of 

the appellant’s 2012 EEO activity. HT at 325-27. 

 

11 The initial decision references this EEO complaint as being filed on February 25, 

2013, ID at 20, but it was filed on February 26, 2013, IAF, Tab 27 at 128, 132. 
14

¶27 The appellant also filed an EEO complaint on February 26, 2013, which he 

subsequently amended to include his removal. IAF, Tab 27 at 128. The 

proposing official was aware of this EEO complaint and provided testimony in 

connection with it. Id. at 129; HT at 315. The proposing official, however, 

could not have proposed the appellant’s removal in retaliation for the appellant’s 

February 26, 2013 EEO complaint because the record reflects that the appellant 

did not initiate contact with an EEO counselor regarding this complaint until 

February 8, 2013, after his removal already had been proposed on January 10, 

2013. IAF, Tab 8 at 62, Tab 27 at 132. 

¶28 We agree that the administrative judge improperly found that the deciding 

official was unaware of the appellant’s prior EEO activity because she did not 

testify that she had no knowledge of such activity. PFR File, Tab 3 at 20; ID

at 21. Rather, she testified that she was aware that the appellant had alleged in 

his response to the proposed removal that the proposing official was retaliating 

against him for his prior EEO activity. HT at 458. Accordingly, on remand, the 

administrative judge shall assess all relevant testimony concerning whether the 

proposing and deciding officials were aware of the appellant’s prior EEO activity 

and make necessary credibility determinations to resolve conflicting testimony. 

¶29 On review, the appellant also argues that the administrative judge failed to 

analyze all relevant evidence concerning his retaliation claim. 12 PFR File, Tab 3

at 20-21. Significantly, he contends that the administrative judge failed to 

consider evidence that the proposing official was found to have committe d 

reprisal, as well as evidence that, shortly after he became Acting Police Chief, the 

 

12 We have not considered the appellant’s argument raised for the first time on review 

that his removal was due to race discrimination. PFR File, Tab 3 at 19-20. Although 

the appellant alleged race discrimination in his EEO complaint, IAF, Tab 27 at 128, he 

did not raise an affirmative defense of race discrimination before the administrative 

judge, IAF, Tab 1 at 4; I-3 AF, Tab 13 at 7-8, and he has not shown that his claim is 

based on any new and material evidence that was not previously available despite his 

due diligence, see Banks, 4 M.S.P.R. at 271; 5 C.F.R. § 1201.115(d). 
15

proposing official had asked for a list of names of officers who had engaged in 

prior EEO activity. Id. at 7, 21. Based on our review of the record, we agree 

with the appellant that the initial decision did not adequately summarize the 

evidence relating to his retaliation claim. See Spithaler v. Office of Personnel 

Management, 1 M.S.P.R. 587, 589 (1980) (stating that an initial decision must 

identify all material issues of fact and law, summarize the evidence, resolve 

issues of credibility, and include the administrative judge’s conclusions of law 

and his legal reasoning, as well as the authorities on which that reasoning rests). 

¶30 The record contains a copy of a final agency decision regarding the 

appellant’s February 26, 2013 EEO complaint. IAF, Tab 27 at 128-50. In this 

complaint, the appellant alleged that he was subjected to discrimination and 

retaliation from May 2012 until he was removed on March 8, 2013, when the 

proposing official made derogatory statements about the EEO process, failed to 

prevent interaction between the appellant and a coworker who made a death threat 

against him, issued him a letter of inquiry accusing him of defrauding the 

Government by claiming overtime for hours he did not work, unjustly accused 

him of violating the agency’s weapon’s policy, while not questioning other 

officers who had engaged in the same conduct, and removed him. Id. at 128-32. 

¶31 In its final agency decision, the agency determined that the proposing 

official had engaged in “per se reprisal” by expressing hostility toward the EEO 

process. Id. at 138-41. The agency found that, during supervisory meetings, 

which the appellant attended, the proposing official made statements to the effect 

that he “didn’t care about EEO [complaints]” and that he would “fight them tooth 

and nail.” Id. at 130, 138-41. At the hearing, the appellant’s supervisor testified 

as to having heard the proposing official make comments to this effect. HT at 53. 

The appellant’s supervisor also testified that, in the spring of 2012, shortly after 

the proposing official became the Acting Police Chief, the proposing official 

asked him for a list of people who “came back after . . . their EEO [complaints] 

were settled with the court system or MSPB.” HT at 53-55. The administrative 
16

judge found that the appellant did not provide any evidence of behavior toward or

comments directed at employees with prior EEO activity without mentioning any 

of this evidence. 

¶32 The appellant also argued below that the proposing official was searching to 

find reasons to fire him and intentionally charged him with misconduct that he 

knew he could not prove in retaliation for the appellant’s prior EEO activity. 

I‐3 AF, Tab 23, Hearing Compact Disc (HCD), track 2. First, he alleged that, in 

his response to the notice of proposed removal, he pointed out numerous factual 

errors in the proposal notice, but the agency ignored them and sustained his 

removal. I-3 AF, Tab 12 at 2‐3. He also claimed that the agency failed to prove 

or withdrew many of its specifications. I-3 AF, Tab 23, HCD, track 2. 

¶33 Second, he argued that the proposing official retaliated against him by 

charging him with violating the agency’s weapons policy because he did not 

discipline any of the other similarly situated employees who also had violated the 

policy. He contended that the agency offered no explanation as to why it 

disciplined him, but did not discipline other employees. I-3 AF, Tab 23, HCD, 

track 2; IAF, Tab 27 at 131. The appellant also contends that the administrative 

judge failed to consider that the agency was searching for reasons to fire him as 

evidenced by the fact that it charged him with failing to be armed at a felony 

arrest scene on July 2, 2012, an incident that occurred over 6 months prior to his 

proposed removal, and for which he was not disciplined at the time. HT 

at 162‐63; PFR File, Tab 3 at 16. 

¶34 Third, he argued that the proposing official intentionally assigned the same 

coworker who had threatened to kill the appellant, and about whom the appellant 

filed his 2012 EEO complaint, to investigate the charges knowing that he would 

be biased against the appellant. I-3 AF, Tab 12 at 1-2, Tab 23 HCD, track 2. The 

appellant contended that the evidence established that this coworker did not 

conduct a legitimate investigation, and that notwithstanding numerous problems 
17

with his report of investigation, the agency relied upon an incomplete draft report 

to remove the appellant. I-3 AF, Tab 23, HCD, track 2. 

¶35 The investigation conducted by the coworker related to specification 1 of 

the agency’s charge of failure to properly perform job duties in which the agency 

alleged that the appellant failed to follow up on altered receipts provided to him 

regarding an investigation of theft. IAF, Tab 8 at 62, 72-75. The administrative 

judge did not sustain this specification, finding that the report drafted by the 

coworker, and relied up by the agency to remove the appellant, was an incomplete 

preliminary draft, not a final draft, it was dated the same date that the coworker 

had been appointed to look into the appellant’s handling of the incident, but its 

text referred to investigatory work completed by the coworker on subsequent 

dates, and it was missing words or sentences and at least one page. 13 ID at 6-8. 

The administrative judge further found that this report did not represent a 

thorough examination of the matters at issue, and that the coworker came to the 

cursory conclusion that the appellant mishandled the investigation, not on any 

factual basis, but based on his “many years of education, experience and 

knowledge,” which she found too speculative. Id. at 7. 

¶36 In light of the foregoing, we remand the appeal for further consideration of 

the appellant’s affirmative defense. On remand, the administrative judge shall 

assess all relevant evidence and make new findings as to whether the appellant

proved that his removal was a result of retaliation. 

ORDER

¶37 For the reasons discussed above, we remand this case to the regional office 

for further adjudication. On remand, the administrative judge shall make 

credibility findings to determine whether the agency proved its failure to perform 

 

13 The coworker who drafted the report testified that the report in the agency file was 

his preliminary draft and, at the hearing he produced a copy of the final report. I-3 AF, 

Tab 22, HCD, track 4 at 45:00; compare IAF, Tab 8 at 72-75, with I-3 AF, Tab 25 

at 1‐5. 
18

the duties of the position charge and analyze all relevant evidence to determine 

whether the appellant proved his affirmative defense of retaliation. If the 

administrative judge finds that the appellant has not proven his affirmative 

defense, she shall determine the maximum reasonable penalty for the sustained 

misconduct, considering all facts, circumstances, and mitigating factors. She 

shall allow the parties an opportunity to submit briefing concerning the 

circumstances and factors relevant to the determination of a reasonable penalty. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board