UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEAN R. GERMAIN,

Appellant,

v.

FEDERAL RESERVE SYSTEM,

Agency.

DOCKET NUMBER

NY-0752-21-0042-I-1

DATE: July 29, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jean R. Germain, Princeton, New Jersey, pro se.

Sarah Preis, Esquire, and Kelsie Williams, Esquire, Washington, D.C., for 

the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

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

affirmed his removal. On petition for review, the appellant challenges the

administrative judge’s handling of his equal employment opportunity (EEO)

reprisal claim, and he argues that the administrative judge improperly denied him

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
an opportunity to present evidence and call witnesses and was biased against him.

Petition for Review (PFR) File, Tab 1 at 6. He also submits several documents

with his petition for review. Id. at 10-33. Generally, we grant petitions such as

this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 The administrative judge correctly found that the agency proved the charges

of disrespectful conduct and making an inflammatory statement by preponderant

evidence, that a nexus exists between the misconduct and the efficiency of the

service, and that the penalty of removal was reasonable. Initial Appeal File

(IAF), Tab 109, Initial Decision (ID) at 4-13, 16-17. She also correctly found

that the appellant failed to establish any of his affirmative defenses, which

include a claim of a due process violation, discrimination based on his military

2
status,2

 and reprisal for engaging in EEO activity and filing an Office of Workers’

Compensation Programs (OWCP) claim. 3 ID at 13-16. 

We discern no basis to disturb the administrative judge’s finding that the

appellant failed to establish his EEO reprisal claim.

¶3 In the initial decision, the administrative judge concluded that the record

did not support a finding that the removal action was “taken because of” the

appellant’s EEO activity. ID at 16. The appellant argues on review that the

administrative judge should have consolidated his Board appeal with his Equal

Employment Opportunity Commission (EEOC) appeal because the two appeals

are “connected” and should have been consolidated for evidentiary purposes.

PFR File, Tab 1 at 6. This argument is without merit, as the Board and the EEOC

are separate tribunals with separate processes and do not consolidate cases.

¶4 Additionally, the appellant argues that the administrative judge failed to

consider the cat’s paw theory or whether the evidence demonstrated a convincing

mosaic of retaliation. Id. Neither argument provides a basis to disturb the initial

decision. Under the cat’s paw theory, an appellant can show retaliation by

showing that a particular management official, acting because of an improper

2

 The appellant has also filed a Uniformed Services Employment and Reemployment

Rights Act (USERRA) appeal, which is pending before the Board on petition for review

following remand, and will be addressed in a separately issued decision. Germain v.

Federal Reserve System, MSPB Docket No. NY-4324-21-0117-B-1, Petition for Review

File, Tab 1. 

3

 In the appellant’s arguments below regarding reprisal, he references an Office of the

Inspector General complaint as well as disclosures regarding harassment. IAF, Tab 21

at 5, 11-12. Although the administrative judge provided the appellant notice of how to

prove a whistleblower reprisal claim, she did not address any such claim in the initial

decision. The appellant has not raised this as an issue on review. PFR File, Tab 1.

Given that the focus of the appellant’s reprisal claims is largely concentrated around his

EEO activity, the fact he did not further elaborate on his already vague and

underdeveloped whistleblower reprisal allegations following the administrative judge’s

notice, and the fact that he did not challenge the administrative judge’s decision to omit

a discussion of whistleblower reprisal from the initial decision, we conclude that a

remand is not necessary on this issue. See Thurman v. U.S. Postal Service, 2022 MSPB

21, ¶ 18 (setting forth a nonexhaustive list of factors to consider in determining whether

an appellant waived an affirmative defense or whether an administrative judge’s

handling of an affirmative defense warrants remand). 

3
animus, influences an agency official who is unaware of the improper animus

when implementing a personnel action. See Aquino v. Department of Homeland

Security, 121 M.S.P.R. 35, ¶ 19 (2014). Here, according to the appellant, the

management official with the alleged improper animus was his supervisor, who is

also the official who proposed his removal. Thus, the supervisor was directly

involved in implementing the personnel action and the administrative judge

considered whether that official had improper motives. Accordingly, the cat’s

paw theory does not apply. Additionally, although the appellant is correct that

the administrative judge did not discuss whether the evidence demonstrated a

“convincing mosaic” of retaliation, the Board has explained that not all types of

evidence or ways of viewing the evidence will be applicable in every case. See

Wilson v. Small Business Administration, 2024 MSPB 3, ¶ 12; Pridgen v. Office

of Management and Budget, 2022 MSPB 31, ¶ 24. To the extent the appellant is

arguing that the administrative judge did not adequately address all the evidence

of record, the Board has explained that an administrative judge’s failure to

mention all the evidence of record does not mean that she did not consider it in

reaching her conclusion. 4 See Marques v. Department of Health and Human

Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)

(Table). Based on our review of the record, we discern no basis to disturb the

administrative judge’s finding that the appellant failed to establish this

affirmative defense.5

4

 In any event, the Board has explained that a “convincing mosaic” of evidence includes

evidence of suspicious timing, ambiguous statements oral or written, behavior toward or

comments directed at other employees in the protected group, and other bits and pieces

from which an inference of discriminatory intent might be drawn. Pridgen, 2022 MSPB

31, ¶ 24. Apart from a somewhat “suspicious timing,” the appellant has not put forth

any other evidence that, cumulatively, could constitute a convincing mosaic of

circumstantial evidence that his EEO activity was a motivating factor in his removal.

5

 In Pridgen v. Office of Management and Budget, the Board explained that an appellant

may prove an EEO reprisal claim if he shows that his EEO activity played “any part” or

was a motivating factor in the decision to remove him. Pridgen, 2022 MSPB 31,

¶¶ 20-22, 30; see Wilson, 2024 MSPB 3, ¶ 11. Based upon our review of the record

evidence, we find that the appellant did not show that his EEO activity was at least a

4
The appellant’s remaining arguments on review do not provide a basis to disturb

the initial decision.

¶5 As noted above, the appellant also argues on review that the administrative

judge denied his request to submit evidence and call witnesses, and was biased

against him. Regarding the appellant’s claim that he was denied an opportunity to

submit evidence, he has not pointed to any specific evidence that he wished to

submit that the administrative judge refused to admit. 6 PFR File, Tab 1 at 6.

Regarding his argument concerning witnesses, the record shows that the appellant

requested 43 witnesses and asserted that each witness “would help corroborate

[his] complaints of harassment, retaliation, and protected activities.” IAF,

Tabs 50, 73, 76. Although the administrative judge approved the proposing and

deciding officials and the appellant as the only witnesses, she explained that she

could convene an additional hearing session following the scheduled hearing if

she determined that there was a need for additional witnesses to testify. IAF,

Tab 94. The appellant broadly argues that this handling was improper. PFR File,

Tab 1 at 6. However, it is well settled that an administrative judge has wide

discretion to exclude witnesses when it has not been shown that their testimony

motivating factor in the agency’s decision. 

6

 With his petition for review, the appellant submits several documents, including his

response to the notice of proposed removal, a March 23, 2021 letter from the

Department of Labor (DOL) regarding referral of what appears to be a USERRA matter

to OSC, December 31, 2022 and January 2, 2023 statements from the appellant

regarding his claim of “bias and prejudice,” a July 26, 2022 appeal request form for

OWCP, and a January 27, 2023 written request to DOL asking that the appellant’s claim

be reopened. PFR File, Tab 1 at 10-33. The Board generally will not consider evidence

submitted for the first time with a petition for review absent a showing that it was

unavailable before the record closed before the administrative judge despite the party’s

due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980).

Here, the record closed on September 13, 2021. To the extent that some of the

documents submitted on review postdate the close of record, the appellant has not

explained how those documents are of sufficient weight to warrant an outcome different

than that of the initial decision. PFR File, Tab 1. Thus, none of the documents

submitted on review provides a basis to grant the petition for review. See Russo v.

Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board generally

will not grant a petition for review based on new evidence absent a showing that it is of

sufficient weight to warrant an outcome different from that of the initial decision).

5
would be relevant, material, and nonrepetitious. See Warren v. Department of

Defense, 87 M.S.P.R. 426, ¶ 7 (2001); see also 5 C.F.R. § 1201.41(b)(8) (setting

forth an administrative judge’s authority and discretion to rule on witnesses).

Given that the appellant’s proffer for each proposed witness generically asserted

that they would all testify regarding his claims of harassment, retaliation, and

protected activity, the appellant has not demonstrated that such witness testimony

would not be non-repetitious. Further, such a sweeping proffer regarding the

subject matter of the testimony is insufficient to meet the requirement that the

proffered testimony be relevant and material. Moreover, the appellant did not

object below to the administrative judge’s limiting of witnesses. Although it does

not appear that the administrative judge provided the appellant a specific

opportunity to make such an objection, the appellant fails on review to assert with

any specificity how the exclusion of certain witnesses prejudiced his substantive

rights. See Warren, 87 M.S.P.R. 426, ¶ 8; see also Karapinka v. Department of

Energy, 6 M.S.P.R. 124, 127 (1981). Accordingly, the appellant’s arguments in

this regard do not provide a basis to disturb the initial decision. 

¶6 The appellant also argues on review that the administrative judge was

biased against him. PFR File, Tab 1 at 6. In making a claim of bias or prejudice

against an administrative judge, a party must overcome the presumption of

honesty and integrity that accompanies administrative adjudicators. See Fox

v. Department of the Army, 120 M.S.P.R. 529, ¶ 46 (2014); Oliver v. Department

of Transportation, 1 M.S.P.R. 382, 386 (1980). We find nothing in the record to

support the appellant’s assertion that the administrative judge was biased in her

adjudication of this matter, and the appellant does not point to specific examples

in his petition for review. As such, the appellant has not overcome the

presumption of honesty and integrity accompanying administrative adjudicators,

and this argument, therefore, is without merit.

¶7 Based on the foregoing, we affirm the initial decision.

6
NOTICE OF APPEAL RIGHTS7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

7

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

7
U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

9
disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.8 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

8

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

10
Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

11