Gores V Department of Veterans Affairs

Gores v. Department of Veterans Affairs, 68 M.S.P.R.
100 (1995)
KeyCite Red Flag - Severe Negative Treatment

Reversed by Gores v. Department of Vererans Affairs, Fed.Cir.,
November 4, 1997
68 M.S.P.R. 100
Merit Systems Protection Board.
West Headnotes (26)

[1]
Mel A. GORES, Appellant,

v.
DEPARTMENT OF VETERANS AFFAIRS,
Agency.
Administrative judge may impose sanctions

against party for failure to follow Boards
regulations or failure to respond to administrative
judges orders. 5 C.F.R. 1201.43.
NY-0752-94-0245-I-1. | June 27, 1995.

Department of Veterans Affairs petitioned for review of
initial decision that reversed agencys action suspending
medical center director for 30 days for whistleblower
reprisal against chief personnel officer. The Merit Systems
Protection Board held that: (1) by passively accepting
physicians note, stating that officer was unable to attend
deposition due to his medical condition, agency failed to
meet its obligation of good faith and due diligence to
produce officer at deposition requested by director and,
therefore, imposition of sanctions was in the interest of
justice; (2) director engaged in whistleblower reprisal by
giving officer minimally successful rating on his
performance appraisal; (3) director engaged in
whistleblower reprisal by detailing officer from his
position; (4) directors continuance of officers detail in
library for officers alleged blackmailing coemployee after
director was informed that United States Attorney had
declined to investigate blackmail allegation constituted
whistleblower reprisal; (5) directors giving memorandum
relieving officer of his duties in presence of several other
departmental managers did not constitute whistleblower
reprisal; (6) deciding official did not engage in improper ex
parte communications prior to issuing agencys decision
letter; and (7) directors whistleblower retaliation and
violation of agency regulations regarding employee
conduct constituted misconduct warranting disciplinary
action, and 15-day suspension was maximum reasonable
penalty under circumstances.
Petition granted; initial decision affirmed in part and
vacated in part; penalty action mitigated to 15-day
suspension.
Benjamin L. Erdreich, Chairman, issued concurring
opinion.
Antonio C. Amador, Member, issued concurring opinion.
Merit Systems Protection

Sanctions
Cases that cite this headnote
[2]

Sanctions
Sanctions should be imposed when a party has
failed to exercise due diligence in complying
with any order, or when a party has exhibited
negligence or bad faith in its efforts to so comply.
5 C.F.R. 1201.43.
[3]

Sanctions
Administrative judge should not resort to
imposition of sanctions unless necessary to serve
the ends of justice. 5 C.F.R. 1201.43.
[4]

Sanctions
By passively accepting physicians note, stating
that chief personnel officer was unable to attend
deposition due to his medical condition, agency
failed to meet its obligation of good faith and due
diligence to produce officer at deposition,
justifying adverse inference sanction; although
agency submitted evidence establishing that
officer had suffered from anxiety, dysthymia, and
2015 Thomson Reuters. No claim to original U.S. Government Works.
Gores v. Department of Veterans Affairs, 68 M.S.P.R. 100 (1995)
severe depression for past several years and that

officer had been incapacitated due to his
condition for all of past year, officers condition
did not impair his ability to testify at equal
employment opportunity hearing during time
officer allegedly suffered from such condition;
moreover, physician failed to diagnose ailment
that incapacitated officer, and, in any event,
agency failed to show that it was harmed by
imposition of adverse inference sanction. 5
C.F.R. 1201.43.
[7]

Initial Decision
An initial decision must identify all material
issues of fact and law, summarize the evidence,
resolve issues of credibility, and include
administrative judges conclusions of law and his
legal reasoning, as well as the authorities on
which that reasoning rests. 5 C.F.R.
1201.111(b).
[8]
[5]

Burden of Proof and Standards of Proof in
General
Administrative judge erred in finding that
proposing and deciding officials applied wrong
evidentiary standard in whistleblower reprisal
case, and were required to determine whether
whistleblowing was significant factor in
allegedly retaliatory actions; agencys function
was not adjudicatory, and it was not responsible
for applying various burdens of proof and
evidentiary standards applicable in Boards
appellate procedures.
Resolving conflicts in evidence and deciding

issues of credibility are normally the province of
administrative judge because he can assess
credibility of witnesses based on their demeanor
during hearing.
[9]
[6]

Procedures Generally; Application
Initial Decision
Although initial decision reversing suspension of
employee, did not contain findings and
conclusions on all material issues presented
below, remand was not necessary where
employee withdrew his request for hearing.

Initial Decision
Initial decision, reversing suspension of
employee, did not contain findings and
conclusions on all material issues presented
below where administrative judge analyzed
merits of agencys charges based only on
agencys decision letter, notice of proposed
suspension, and brief excerpts from depositions,
without considering other evidence in record that
supported agencys decision.

Administrative Judge (Formerly Presiding
Official)
[10]

In General; Miscellaneous Misconduct
To establish that employee engaged in prohibited
personnel practice of whistleblower reprisal,
agency must prove that the acting official had the
authority to take, recommend, or approve any
personnel action, that the aggrieved employee
made a disclosure protected under statute, that

the acting official used his authority to take or
refuse to take personnel action against the
aggrieved employee, and that the acting official
took or failed to take the personnel action against
the aggrieved employee because of the protected
disclosure. 5 U.S.C.A. 2302(b)(8).
[11]
[12]
satisfying element of whistleblower reprisal

charge against medical center director. 5
U.S.C.A. 2302(b)(8).
[14]

Employee, as director of medical center, had

sufficient authority to recommend personnel
action against chief personnel officer, for
purposes of determining whether director
engaged in prohibited personnel practice of
whistleblower reprisal. 5 U.S.C.A. 2302(b)(8).
Agency showed that medical center director used

his authority to take personnel action against
chief personnel officer, for purposes of
determining whether director engaged in
prohibited personnel practice of whistleblower
reprisal, where record indicated that director
rated officer as minimally successful on
performance appraisal and detailed him from his
position to position in library. 5 U.S.C.A. 2302
(a)(2)(A)(iv), (a)(2)(A)(viii), (b)(8).


[15]
Test to determine whether agency charging

whistleblower reprisal has proven that
whistleblower made disclosures protected under
Whistleblower Protection Act (WPA) is whether
person with information that whistleblower had
could have reasonably concluded that his
disclosures were protected under WPA. 5
U.S.C.A. 2302(b)(8).

In order for agency to prove that employee acted
to terminate whistleblower because of his
protected disclosures, for purposes of
determining whether employee engaged in
prohibited personnel practice of whistleblower
reprisal, agency must show, by a preponderance
of the evidence, that protected disclosures were
significant factor in personnel actions that
employee took against whistleblower. 5 U.S.C.A.
2302(b)(8).

[13]

[16]
Chief personnel officer could have reasonably

believed that his disclosures to Office of
Inspector General (OIG) and Office of Special
Counsel (OSC) regarding medical center
uncovered numerous violations of agency and
federal personnel regulations were protected
under Whistleblower Protection Act (WPA),

Evidence supported conclusion that chief
personnel officers disclosures regarding
mismanagement of personnel office were
significant factor in medical center directors
decision to give officer minimally successful
officers detail in library for officers alleged

blackmailing coemployee after director was
informed that U.S. Attorney had declined to
investigate blackmail allegation constituted
whistleblower reprisal and violation of agency
regulations regarding employee conduct; director
was angry about officers disclosures regarding
mismanagement of personnel office and there
was no other valid support in directors white
paper to justify detailing officer from his
position. 5 U.S.C.A. 2302(b)(8); 38 C.F.R.
0.735-10(a), (b)(4), (e), 0.735-18, 0.735-21(l )
(1993).
rating on his performance appraisal and,

therefore, directors decision to rate officer as
minimally
successful
constituted
whistleblower reprisal and violation of agency
regulations regarding employee conduct; director
knew prior to period of review at issue that
officers disclosures to Office of the Inspector
General (OIG) had resulted in second audit at
center, director was eager to take some kind of
personnel action against officer during period of
review, and personnel specialists from whom
director had sought advice regarding officers
performance appraisal believed that there was no
basis to take any kind of action against officer. 5
U.S.C.A. 2302(b)(8); 38 C.F.R. 0.735-10(a),
(b)(4), (e), 0.735-18, 0.735-21(l ) (1993).

[19]
[17]
[18]
Medical center directors giving chief personnel

officer memorandum relieving him of his duties
in presence of several other departmental
managers did not constitute either whistleblower
reprisal or violation of agencys regulations
concerning employee conduct; managers had
already been informed of detail, and director
testified that it was only an accident that
managers were present at time officer came to
office; moreover, there was no evidence to
demonstrate that director was attempting to
embarrass or humiliate officer or that, in fact,
officer was embarrassed or humiliated. 5
U.S.C.A. 2302(b)(8); 38 C.F.R. 0.735-10(a),
(b)(4), (e), 0.735-18, 0.735-21(l ) (1993).

Evidence supported conclusion that chief
personnel officers disclosures regarding
mismanagement of personnel office were
significant factor in medical center directors
decision to detail officer from his position to
library duty and, therefore, directors action
constituted whistleblower reprisal and violation
of agency regulations regarding employee
conduct; there was little substance to allegation
that officer blackmailed coemployee, and once
director learned of blackmail allegation he acted
in great haste to detail officer, without
conducting thorough investigation; moreover,
director was angry about officers disclosures,
and there was no other valid support in directors
white paper to justify detailing officer from his
position. 5 U.S.C.A. 2302(b)(8); 38 C.F.R.
0.735-10(a), (b)(4), (e), 0.735-18, 0.735-21(l )
(1993).

Evidence supported conclusion that medical
center directors continuance of chief personnel

[20]

Medical center directors act of presenting
memorandum relieving chief personnel officer of
his duties did not constitute personnel action
and, therefore, directors act of presenting
memorandum to officer in presence of several
other departmental managers could not constitute
either whistleblower reprisal or violation of
agencys regulations concerning employee
conduct. 5 U.S.C.A. 2302(b)(8); 38 C.F.R.
[21]
0.735-10(a), (b)(4), (e), 0.735-18, 0.735.2(l )

(1993).
0.735-10(a), (b)(4), (e), 0.735-18, 0.735-21(l )

(1993).

Procedural Error
[24]

Penalty and Mitigation
Whenever agencys action is based on multiple
charges, some of which are not sustained,
administrative judge should consider carefully
whether sustained charges merited penalty
imposed by agency.
There is no statutory or regulatory prohibition

against ex parte communications between
proposing and deciding officials or any other
officials
or
persons
during
agencys
decision-making process in an adverse action;
however, ultimate decision must be made by
deciding official, not by some other individual.

[25]
[22]

Procedural Error
Employee failed to establish that deciding
official engaged in improper ex parte
communications with Officer of Special Counsel
(OSC) prior to issuing decision; although
deciding official stated he had two brief
conversations with OSCs contact person
concerning case, official could not recall whether
OSCs contact person persuaded him that 30-day
suspension was appropriate, such that whatever
influence OSC had in case was minimal.

Senior Executive Service
Senior Executive Service (SES) supervisor must
be expected to conform to higher standard of
conduct than other employees.
[26]

Agency is permitted to take disciplinary action
against supervisor who retaliates against
employee because of his protected disclosures.
[23]

Senior Executive Service
Senior Executive Service (SES) supervisors
whistleblower retaliation and violation of agency
regulations regarding employee conduct
constituted misconduct warranting disciplinary
action, and 15-day suspension was maximum
reasonable penalty under circumstances. 5
U.S.C.A. 2302(b)(8), 7543(a); 38 C.F.R.
Attorneys and Law Firms

*106 Diana J. Veilleux, Esq., Washington, DC, for
appellant.
Thomas J. McKeever, Jr., Washington, DC, for agency.
Before ERDREICH, Chairman, and AMADOR, Member.
allegations were not substantiated. Id.
OPINION AND ORDER

The agency has petitioned for review of the October 7,
1994 initial decision that reversed the agencys action
suspending the appellant for 30 days. For the reasons
discussed below, we GRANT the petition for review,
AFFIRM the initial decision in part, VACATE the initial
decision IN PART, and MITIGATE the agencys action to
a 15-day suspension.
BACKGROUND
On February 20, 1994, the agency suspended the appellant,
an ES-04 Medical Center Director, for 30 days based on:
(1) Improperly rating David Goblet, the Chief Personnel
Officer at the Medical Center (Center), as minimally
successful on his performance appraisal for the period
ending March 31, 1991, in reprisal for his disclosures to the
Office of the Inspector General (OIG) and/or the Office of
Special Counsel (OSC) concerning violations of personnel
regulations at the Center; (2) improperly detailing Goblet
from his position to duties to be performed in the library on
September 13, 1991, based in part on his disclosures to the
OIG and/or OSC, and failing to follow through with an
administrative investigation into allegations that Goblet
had blackmailed another agency employee and continuing
Goblets detail even though the appellant had been advised
that the blackmail allegations would not be pursued by the
United States Attorneys Office (U.S. Attorney); and (3)
publicly humiliating Goblet by inappropriately giving him
notification of his detail in the presence of other managers
at the Center during a national conference call. See Initial
Appeal File (IAF), Vol. 1, Tab 3, Subtab 4K. In its notice
of proposed removal, the agency stated that the actions
cited in the three charges violated 5 U.S.C. 2302(b)(8),
and several agency regulations regarding employee
misconduct.1 Id.
*107 In May 1989, the OIG received written allegations
from anonymous sources at the Center citing excessive
stand-by pay rates in laboratory service, irregularities in
stand-by pay2 for radiology service employees,
inappropriate awards for nursing service employees, and
improper performance appraisal practices. See IAF, Vol. 9
(Agency Exhibit # 21). The OIG referred these allegations
of mismanagement to the agencys Health Administration
(HA) regional staff for review. In June 1989, the acting
Deputy Regional Director (DRD) responded that the
Officials at the OIG believed that the acting DRDs

response did not appropriately address the allegations and
forwarded the response and allegations to the agencys
Central Office (CO) Personnel and Finance officials for
review. Id. A July 1989 response from CO Personnel
officials substantiated all four of the allegations. An
October 1989 response from CO Finance officials further
substantiated the allegation of irregularities in the award of
United States Savings Bonds, the only allegation that they
were asked to review. Id. In December 1989, the acting
Regional Director provided an amended response
recognizing the technical problems in the award of savings
bonds to nursing staff and indicated that the appellant had
been counseled concerning these problems and the manner
in which the awards were handled. Id. Although the OIG
was unaware of the allegations source, there was
considerable contact regarding the allegations between CO
Personnel and Finance officials and officials at the Center,
including the appellant and Goblet. Id. Since the
allegations were related primarily to personnel issues that
Goblet had previously discussed at the Center, the
appellant believed that Goblet was either the source or a
major contributor to the anonymous allegations of
impropriety at the Center. See IAF, Vol. 1, Tab 3, Subtab
4H (Appellants Declaration at 4-5).
In November 1990, Congressman Amo Houghton
forwarded nine other allegations of mismanagement by the
appellant to the OIG. See *108 IAF, Vol. 3, Tab 4a, Subtab
4CCC. Goblet had provided the allegations to
Congressman Houghton and to OSC. On November 14,
1990, OSC declined to investigate Goblets allegations,
and advised him that to pursue the prohibited personnel
practices indicated in the documents that he had filed,
specifically a poor performance rating in reprisal for his
disclosures, he should file an OSC form and attach the
performance appraisal in question. See IAF, Vol. 3, Tab 4a,
Subtab 4EEE. On September 5, 1991, Goblet filed an OSC
complaint and attached an appraisal for the period of April
1, 1990, to March 31, 1991, and alleged a number of
irregularities. See IAF, Vol. 2, Tab 4, Subtabs 4GG, JJ.
From November 1990 to September 1991, the OIG audit
staff reviewed the nine allegations, and Thomas Cargill,
the OIGs regional Manager, found in an October 25, 1991
final report that three of the nine allegations were
substantiated. See IAF, Vol. 2, Tab 4, Subtab 4W. On
January 30, 1992, the OIG audit staff completed another
review of the Center and issued a report in which Cargill
found that two other allegations made by Goblet
concerning mismanagement at the Center were
substantiated. See IAF, Vol. 2, Tab 4, Subtab 4Q.
On September 13, 1991, the appellant issued a

memorandum to Goblet that relieved him of all of his
duties and responsibilities as Chief Personnel Officer, and
detailed him to the library indefinitely. See IAF, Vol. 2,
Tab 4, Subtab 4CC. Subsequently, Goblet alleged to both
OSC and the OIG that the detail and his minimally
satisfactory performance appraisal were reprisals for his
complaints of mismanagement by the appellant to OSC
and the OIG. See IAF, Vol. 2, Tab 4LL.
Based on the appellants oral and written replies to the
proposed suspension, James Scargini, a personnel
specialist at the CO, recommended to Sanford Garfunkel,
the deciding official, that only charges 1 and 3 be
sustained. See IAF, Vol. 1, Tab 3, Subtabs 4C, D.
Nevertheless, Garfunkel sustained all three charges in the
decision letter. See IAF, Vol. 1, Tab 3, Subtab 4B.
On appeal, the appellant contended that the suspension
should be reversed because Garfunkel engaged in improper
ex parte communications with OSC that influenced his
decision to sustain the 30-day suspension. See IAF, Vol. 5,
Tab 22. Thus, the appellant argued that the agency
committed harmful procedural error. Id. He further
contended that the agency could not prove by preponderant
evidence that his personnel actions with respect to Goblet
constituted whistleblower reprisal. Id. In this regard, the
appellant argued that Goblet was not entitled to
whistleblower status because his complaints to OSC and
the OIG did not constitute protected disclosures under 5
U.S.C. 2302(b)(8). Id. Also, the appellant argued that
Goblet should not *109 be afforded whistleblower
protection because his interest in causing office disruption
and maligning the appellant substantially overshadowed
any allegations of waste, fraud, or abuse that Goblet might
have made to the OIG. Id.
Even assuming that Goblet could be afforded
whistleblower status, the appellant argued that the record
did not demonstrate that Goblets disclosures were a
significant factor in the personnel actions at issue. Id. In
this connection, the appellant argued that Goblets
disclosures to the OIG concerned arcane, technical errors
in personnel matters, and that, even after the OIG verified
the allegations, the appellant was not reprimanded. Id.
Therefore, the appellant contended that he had no motive
to commit acts of reprisal against Goblet. Id. With respect
to Goblets performance appraisals, the appellant noted
that he gave Goblet a fully successful performance
appraisal in May 1990, eleven months after his first
disclosures, and that the appellant gave Goblet a
within-grade increase in January 1991. Id. Further, the
appellant argued that the performance ratings were
justified by concerns that he had with Goblets lack of

rapport with the personnel staff and his unhelpful attitude
toward other service chiefs. Id. With respect to the detail,
the appellant contended that his action was justifiable
based on allegations that Goblet had attempted to
blackmail or bribe Dr. Richard White, a Radiologist at the
Center. Id. Finally, the appellant asserted that, even
assuming that the agency could establish the charges
against him by preponderant evidence, his alleged
misconduct did not warrant a 30-day suspension. Id.
In his initial decision based on the written record, 3 the
administrative judge imposed sanctions on the agency for
its failure to produce Goblet for a deposition. See Initial
Decision (ID) at 3-5. The administrative judge found that
the agency had not met its obligation of good faith and due
diligence by passively accepting a note from Goblets
physician, Dr. Harris Brenner, stating that Goblet was
unable to attend the deposition due to his medical
condition. See ID at 4-5. Consequently, the administrative
judge drew an adverse inference relative to any evidence in
the file that had Goblet as its source. See ID at 3.
The administrative judge further found that the agency has
the burden in a Whistleblower Protection Act (WPA)
disciplinary action of demonstrating that the protected
disclosure was a significant factor in the appellants
decision to take the personnel action at issue against the
whistleblower. See ID at 5. Finding that the OIG report
relied upon by the deciding official, Garfunkel, and the
proposing official, Barbara Gallagher, stated that the
disclosures by Goblet were a contributory, rather than a
significant, factor in the personnel *110 actions taken
against him by the appellant, and that neither the letter of
proposed suspension nor the decision letter charges or
concludes that Goblets WPA activities were a significant
factor in the appellants decision to discipline him, the
administrative judge concluded that the agency had not
established a credible basis for concluding that Goblets
whistleblowing was a significant factor in the appellants
decision to discipline Goblet. See ID at 5-7.
Also, the administrative judge found that Garfunkel never
explained during his deposition what he believed
motivated the appellant to detail Goblet. See ID at 7. In
addition, the administrative judge noted that the
appellants supervisor, Donald E. Burnette, approved
Goblets detail pending the resolution of criminal and
administrative charges against him, and that Garfunkel
stated during his deposition that charge three constituted
only inappropriate conduct, rather than reprisal. See ID at
7. Moreover, the administrative judge noted that neither
Gallagher nor Garfunkel interviewed Goblet or the
appellant, and that the reports on which they relied were
hearsay to the second or third degree. Id. Consequently,

since neither official made a significant factor finding
concerning the charges, the administrative judge found that
the agency had failed to meet its burden of proof, and he
reversed the agencys action. See ID at 7-8.
ANALYSIS
The agency has not shown that the administrative judge
erred by imposing sanctions.
In its petition for review, the agency argues that the
administrative judge should not have drawn an adverse
inference regarding evidence that had Goblet as its source
for the agencys alleged failure to produce Goblet for a
deposition requested by the appellant. See Petition for
Review (PFR) at 13-19. In this connection, the agency
argues, inter alia, that it exercised due diligence in
attempting to produce Goblet for the deposition, but that he
was unable to appear due to his medical condition. See
PFR at 14-17.
[1] [2] [3]
An administrative judge may impose sanctions

against a party for failure to follow the Boards regulations
or failure to respond to the administrative judges orders. 5
C.F.R. 1201.43; Carrier v. U.S. Postal Service, 65
M.S.P.R. 54, 56 (1994). Sanctions should be imposed
when a party has failed to exercise due diligence in
complying with any order, or when a party has exhibited
negligence or bad faith in its efforts to so comply. See id at
56-57. An administrative judge should not resort to the use
of sanctions, however, unless necessary to serve the ends
of justice. See id. at 57.
*111 [4] Here, the imposition of sanctions was in the
interest of justice because the agency did not exercise due
diligence in attempting to have Goblet appear for the
requested deposition. The record shows that the agency
ordered Goblet to attend the deposition, but that he stated
to his supervisor, John Dunn, that he was unable to appear
due to his medical condition. See IAF, Vol. 4, Tab 18
(Attachments). He also provided a medical certificate from
his treating physician, Dr. Harris Brenner, that stated that it
was inadvisable that he attend a deposition. Id. Although
the agency submitted evidence establishing that Goblet has
suffered from anxiety, dysthymia, and severe depression
since 1990, and that he has been incapacitated due to his
condition for all of 1994, we note that his condition did not
impair his ability to testify at his equal employment
opportunity hearing on October 28, 1992. See IAF, Agency
Exhibits 20, 22 (OWCP File). Moreover, since Dr. Brenner
fails to diagnose the ailment that has incapacitated Goblet,
the agencys unquestioning acceptance of Goblets
medical evidence shows that the agency did not exercise

due diligence. Therefore, by passively accepting Dr.
Brenners note, the agency has not met its obligation of
good faith and due diligence to produce Goblet at the
deposition requested by the appellant. Consequently, we
find that the imposition of sanctions in this case was in the
interest of justice.
In any event, we find that the agency has not shown that it
was harmed by the imposition of the adverse inference
sanction. There are no affidavits attributable to Goblet in
the record, and the administrative judge never identified
any specific evidence in the record as to which he drew an
adverse inference, nor did he make any specific findings
based on the sanction. Moreover, the adverse inference
sanction does not affect our decision because we have not
relied on evidence attributable to Goblet.
The administrative judge incorrectly found that the

proposing and deciding officials were required to
determine whether Goblets whistleblowing was a
significant factor in the allegedly retaliatory actions at
issue.
[5]
The agency further contends that the administrative
judge erred in requiring the proposing and deciding
officials to make specific determinations that Goblets
whistleblowing was a significant factor in the appellants
decisions to detail Goblet, and rate him as minimally
satisfactory on his performance appraisal. See PFR at
4-11. We agree.
To take an adverse action, an agency is required to show
only that its action promoted the efficiency of the service.
See 5 U.S.C. 7513. Once an employee files an appeal of
the agencys action with the Board, the administrative
judge will sustain the agencys action if he determines that
the agencys decision is supported by a preponderance
*112 of the evidence. See 5 U.S.C. 7701(c)(1)(B).
Similarly, it is the administrative judge, not the agency,
who determines whether an employees whistleblowing
was a significant factor in an agency officials decision
to take a personnel action against that employee.
Therefore, it was error for the administrative judge to find
that the proposing and deciding officials applied the wrong
evidentiary standard in reaching their decision because the
agencys function is not adjudicatory, and it is not
responsible for applying the various burdens of proof and
evidentiary standards that are applicable in the Boards
appellate procedures.
The initial decision does not contain findings and
conclusions on all of the material issues presented below.

[6]
The agency also contends that the administrative judge
did not consider the record as a whole in finding that the
agency had not established that Goblets disclosures were a
significant factor in the appellants decision to take the
personnel actions at issue. See PFR at 4-11. We agree.
[7] [8] [9]
An initial decision must identify all material issues

of fact and law, summarize the evidence, resolve issues of
credibility, and include the administrative judges
conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests. See 5 C.F.R.
1201.111(b); Spithaler v. Office of Personnel
Management, 2 MSPB 2, 1 M.S.P.R. 587, 589 (1980).
Here, the initial decision does not include findings of fact
and conclusions of law regarding the merits of the
agencys charges based on all of the evidence of record.
The administrative judge analyzed the merits of the
agencys charges based only on the agencys decision
letter, the notice of proposed suspension, and brief excerpts
from Gallaghers and Garfunkels depositions, without
considering other evidence in the record that supported the
agencys decision. See ID at 2-8. Thus, the initial decision
deviates from the statutory requirement that decisions of an
agency based on chapter 75 of title 5, such as the agencys
decision here, shall be sustained if the decision is
supported by a preponderance of the evidence. See 5
U.S.C. 7701(c)(1)(B); 5 C.F.R. 1201.56(a)(1)(ii);
Young v. Department of the Navy, 53 M.S.P.R. 384, 386-87
(1992). Although resolving conflicts in the evidence and
deciding issues of credibility are normally the province of
the administrative judge because he can assess the
credibility of witnesses based on their demeanor during the
hearing, we find that a remand is not necessary because the
appellant withdrew his request for a hearing.
The agencys first charge is supported by preponderant

evidence.
The agency charged the appellant with violating 5 U.S.C.
2302(b)(8) by retaliating against Goblet for making
protected disclosures. *113 The U.S. Court of Appeals for
the Federal Circuit provided a four-part test in Eidmann v.
Merit Systems Protection Board, 976 F.2d 1400, 1407
(Fed.Cir.1992), for analyzing disciplinary actions brought
by OSC against employees who have allegedly committed
such violations. In Frederick v. Department of Justice, 65
M.S.P.R. 517 (1994), the Board found that the standard
announced in Eidmann applies to a disciplinary action
brought by the agency against an appellant for violation of
5 U.S.C. 2302(b)(8). See id. at 526. See also Caster v.
Department of the Army, 62 M.S.P.R. 436, 442-43 (1994)
(applying the four-part Eidmann test in a disciplinary
action brought by the agency against an appellant for
violation of 5 U.S.C. 2302(b)(8)).

[10]
To establish that an employee engaged in the prohibited

personnel practice of whistleblower reprisal in violation of
5 U.S.C. 2302(b)(8), the agency must prove: (1) The
acting official has the authority to take, recommend, or
approve any personnel action; (2) the aggrieved employee
made a disclosure protected under section 2302(b)(8); (3)
the acting official used his authority to take, or refuse to
take, a personnel action against the aggrieved employee;
(4) the acting official took, or failed to take, the personnel
action against the aggrieved employee because of the
protected disclosure. Eidmann, 976 F.2d at 1407.
[11]
To satisfy the first element, the agency must establish

that the appellant had the authority to take, direct others to
take, recommend, or approve any personnel action. See 5
U.S.C. 2302(b)(8). Here, the record shows that the
appellant was the Director at the Center, and that he had
sufficient authority to recommend a personnel action
against Goblet. See IAF, Vol. 1, Tab 3, Subtab 4A; Vol. 3,
Tab 4a, Subtabs 4uu, xx. Therefore, the appellant
possessed the requisite authority under the statute. See
Special Counsel v. Harvey, 28 M.S.P.R. 595, 608 n. 25
(1984), revd on other grounds, 802 F.2d 537, 544
(D.C.Cir.1986).
[12] [13]
The second element under section 2302(b)(8)

requires the agency to prove that Goblet made disclosures
protected under the WPA. For protection under the WPA,
whistleblowers must reasonably believe the disclosure
reveals legal violations, gross mismanagement, or
substantial and specific danger to public health and safety.
The test here therefore is whether a person with the
information that Goblet had could have reasonably
concluded that his disclosures were protected under 5
U.S.C. 2302(b)(8). See Frederick, 65 M.S.P.R. at 531.
Since the OIG reports substantiated Goblets allegations
concerning the violation of various regulations at the
Centers personnel office, see IAF, Vol. 2, Tab 4, Subtabs
4Q, W (Oct. 25, 1991, and Jan. 30, 1992 OIG Reports), we
find that he reasonably believed his *114 disclosures
uncovered numerous violations of agency and Federal
personnel regulations. Thus, the WPA protected Goblets
disclosures to OSC and the OIG.4
[14]
The third element requires the agency to show that the

appellant used his authority to take, or fail to take, or
threaten to take or fail to take, a personnel action against
Goblet. A personnel action includes details and
performance evaluations. 5 U.S.C. 2302(a)(2)(A)(iv),
(viii). The record indicates that the appellant rated Goblet
as minimally successful on his performance appraisal,
and detailed him from his position as Chief Personnel
Officer to a position in the patient library. See IAF, Vol. 2,

Tab 4, Subtab 4DD; Vol. 3, Tab 4a, Subtab 4UU. These
actions satisfy the third element.
[15]
The fourth element requires the agency to prove that the

appellant acted to terminate Goblet because of his
protected disclosures. 5 U.S.C. 2302(b)(8). Under this
element, the agency must show, by a preponderance of the
evidence, that the protected disclosures were a significant
factor in the personnel actions that the appellant took
against Goblet. See Special Counsel v. Santella, 65
M.S.P.R. 452, 456-59 (1994). In Santella, the Board
concluded that the term significant factor, as that term is
used in OSC disciplinary cases, should be used only to
refer to a factor that played an important role in the
allegedly retaliatory action. See id. at 458. The Board
further held that the significant factor test is not met in
such cases unless the motivation for the action was an
improper one; it stated that evidence that the allegedly
retaliatory action was merely tangentially related to
protected conduct would not be sufficient under this test.
See id. at 458-59. Finally, it found that evidence that
respondents in such cases would have taken the retaliatory
actions absent the protected disclosures would mean that
the role that those disclosures played did not meet the
definition of significant factor. See id. Such evidence
should therefore be considered as part of the significant
factor analysis and not as a separate defense to the
allegation of reprisal. See id. In Frederick, the Board
adopted the Santella significant factor test in evaluating
a disciplinary proceeding brought *115 by an agency
rather than OSC. See Frederick, 65 M.S.P.R. at 528-529.
[16]
As to the agencys first charge, the record indicates that

Goblets disclosures were a significant factor in the
appellants decision to give Goblet a minimally
successful rating on his performance appraisal for the
period from April 1, 1990, to March 31, 1991. In this
connection, we note that the appellant sought advice from
several personnel specialists at the CO regarding Goblets
performance appraisal. See IAF, Vol. 5, Tab 22 at 11-14.
Among those from whom the appellant sought advice were
Joyce Felder, the Associate Deputy Assistant Secretary for
Human Resources Management at the CO, and Katie
McCullough Bradshaw, an Employee Relations Specialist
at the CO. Id.
In her deposition, Felder stated that the information that the
appellant provided to the CO Personnel Office regarding
Goblets performance during the relevant rating period did
not support a rating of minimally successful. See IAF,
Vol. 7 (Exhibit AAA at 24). Furthermore, Bradshaw stated
in her deposition that the appellant had not provided any
documentation to support a rating of minimally
successful for Goblet, and that the appellant decided on a

minimally successful rating only after Bradshaw
informed him that there was no basis for taking any kind of
adverse action against Goblet based on his conduct. See
IAF, Vol. 6 (Exhibit SS at 17-20). Also, Audrey Funk, a
Personnel Management Evaluation Officer who conducted
an audit of the Personnel Office while Goblet was Chief,
found that, while there were communication problems
between Goblet and the appellant, the Personnel Office
was generally a smooth running organization. See IAF,
Vol. 3, Tab 4a, Subtab 4TT (Personnel Management
Evaluation Report at 1).
There were employees at the Center other than the
appellant, however, who had difficulties with Goblet. In an
August 9, 1989 memorandum, Dr. White stated that there
was a lack of communication between the Department of
Radiology and Personnel, and, in a July 19, 1989
memorandum, Jo Tirone, the Chief Resident Nurse,
informed Goblet that she disliked his management style,
and cited several instances of what she considered
inappropriate behavior on his part. See IAF, Vol. 3, Tab 4a,
Subtabs 4QQQ, UUU. Also, there were other employees at
the Center who found Goblet temperamental, irascible, and
prone to making inappropriate comments. See IAF, Vol. 6
(Exhibits GG-KK).
The appellant argued below that he would have given
Goblet a minimally successful performance appraisal
notwithstanding his disclosures to OSC and/or the OIG.
See IAF, Vol. 1, Tab 3, Subtab 4H; Vol. 5, Tab 22. In this
regard, the appellant contended that in his first *116
appraisal of Goblets performance in May 1990, the
appellant had raised concerns about Goblets rapport with
other staff members and generally unhelpful attitude
toward service chiefs, and that he had advised Goblet that
he needed to address those concerns to maintain a rating of
fully successful. See IAF, Vol. 1, Tab 3, Subtab 4H at 13;
Vol. 3, Tab 4a, Subtab 4III. Therefore, the appellant
contended that Goblets failure to improve in the areas
identified warranted his minimally successful rating. See
IAF, Vol. 1, Tab 3, Subtab 4H at 13. The appellant further
contended that, had he given the minimally successful
performance appraisal to Goblet in reprisal for the
disclosures that he had made, the appellant would not have
asked the CO for advice and assistance on the appraisal
prior to issuing it. Id.
Nonetheless, the documentation in the record that casts
Goblet in an unfavorable light concerns events that
occurred prior to the appraisal period for which the
appellant rated him as minimally successful, and none of
this evidence, considering the absence of any evidence
indicating that Goblet had performance problems during
10
the relevant period, supports the minimally successful

rating that the appellant gave Goblet. In this connection,
we note that, although the appellant stated below that
Goblet had failed to address the problems that the appellant
had identified when he had given him his first performance
appraisal, the appellant did not cite any specific evidence
to establish that Goblet continued to have these problems
during the rating period from April 1990, to March 31,
1991. Therefore, given that the appellant knew in January
1991 that Goblets disclosures to the OIG had resulted in a
second audit at the Center; that the appellant was eager to
take some kind of personnel action against Goblet during
the first six months of 1991; and that several Personnel
Specialists from whom the appellant had sought advice
regarding Goblets performance appraisal believed that
there was no basis to take any kind of action against him,
we find that Goblets protected disclosures were a
significant factor in the appellants decision to rate Goblet
as minimally successful on his performance appraisal.
Therefore, the appellants decision to rate Goblet as
minimally successful constituted whistleblower reprisal.
See Thompson v. Farm Credit Administration, 51 M.S.P.R.
569, 582-85 (1991). We further find that the appellants
actions violated the agencys regulations regarding
employee conduct that were in effect at the time that the
action was taken. See 38 C.F.R. 0.735-10(a), 10(b)(4),
10(e), 18, 21(l ) (1993).
The agencys second charge is supported by

preponderant evidence.
[17]
As to the agencys second charge, we find that the
record indicates that Goblets disclosures were a
significant factor in the appellants decision to detail
Goblet to the Centers patient library. In this regard, we
note that Bradshaw, who was assigned responsibility at the
CO for advising the appellant on any adverse action that he
*117 might take with respect to Goblet, informed the
appellant that Dr. Whites blackmail allegation5 did not
constitute a sufficient basis for detailing Goblet. See IAF,
Vol. 6 (Exhibit SS at 44-46). Furthermore, John DiNoto,
the agencys District Counsel, informed the appellant that
the U.S. Attorney and the Federal Bureau of Investigation
(FBI) had no interest in pursuing the matter, and the OIG
concluded that the allegation was baseless. See IAF, Vol. 9
(Agency Exhibit 21, March 16, 1992 OIG Report at 5-7).
The appellant argued below that the detail was an
appropriate management action in response to what he and
others believed was a serious allegation against Goblet.
See IAF, Vol. 1, Tab 3, Subtab 4H; Vol. 5, Tab 22 at 41-46.
In this connection, the appellant stated that he took the
action only after he had received specific written
permission from his supervisor, Donald Burnette. Id.
Therefore, regardless of whether Goblet was a

whistleblower, the appellant contended that Goblets
actions towards Dr. White warranted the action taken. Id.
Also, in an option paper prepared for Garfunkel by James
Scargini, a personnel specialist at the CO, Scargini
recommended that the second charge not be sustained. See
IAF, Vol. 1, Tab 3, Subtab 4D. The report found that,
although there was no evidence that Goblet had attempted
to blackmail Dr. White, it appeared that Goblet might have
engaged in inappropriate behavior which warranted further
inquiry. Id.
Nonetheless, Garfunkel stated during his deposition that he
sustained the second charge because the September 12,
1991 white paper that the appellant sent to Burnette to
justify the detail cited Goblets disclosures to the OIG as
one of the bases for the action. See IAF, Vol. 2, Tab 4,
Subtab 4EE; Vol. 7 (Exhibit VV at 24-28). Garfunkel
further stated that he did not think that there was any basis
for detailing Goblet until the appellant had conducted an
investigation of the incident. See Vol. 7 (Exhibit VV at 27).
Therefore, Garfunkel *118 stated that the appellant must
have detailed Goblet because of his protected disclosures.
Id.
In addition, we note that, although the white paper refers to
allegedly inappropriate conduct by Goblet to support the
detail, most of the conduct cited occurred almost two years
prior to the blackmail allegation. Id. Therefore, if that
conduct were the reason for the disciplinary action, the
appellant likely would have taken action at that time, rather
than using that conduct as an excuse to detail Goblet 18
months later. Also, the only allegation of misconduct that
occurred in 1991 concerned an incident where Goblet
allegedly lost self-control and shouted profanities at
Audrey Funk during an interview. Id. The appellant did
not, however, discuss the incident with Funk, and she
stated in her deposition that, although Goblet was upset
during the interview, he was only a little bit agitated, and
that there was nothing extraordinary about his behavior.
See IAF, Vol. 6 (Exhibit YY).
Moreover, in a September 20, 1991 memorandum that the
appellant sent to Burnette after Goblet had been detailed,
the appellant complained about Goblets disclosures to the
OIG, and stated that he made the disclosures to embarrass
the Medical Center and the Agency. See IAF, Vol. 2, Tab
4, Subtab 4AA. Also, during an October 30, 1991
interview, the appellant told Billy Johnson, an OIG
investigator, that Goblet was calling the [O]IG to make us
look bad. See IAF, Vol. 2, Tab 4, Subtab 4R. Therefore,
given that there was little substance to the blackmail
allegation; that once the appellant learned of the allegation
11
he acted in great haste to detail Goblet, without conducting

a thorough investigation of the matter; that the appellant
was angry about Goblets disclosures to the OIG; and that
there was no other valid support in the appellants white
paper to justify detailing Goblet to the patient library, we
find that Goblets disclosures were a significant factor in
the appellants decision to detail Goblet from his position
as Chief Personnel Officer. Thus, we find that the
appellants action constituted whistleblower reprisal. We
further find that the appellants actions violated the
agencys regulations regarding employee conduct that
were in effect at the time that the action was taken. See 38
C.F.R. 0.735-10(a), 10(b)(4), 10(e), 18, 21(l ) (1993).
[18]
The agencys second charge also states that the

appellants decision to continue Goblets detail after the
appellant was informed that the U.S. Attorney had declined
to investigate the blackmail allegation constituted
whistleblower reprisal. See IAF, Vol. 1, Tab 3, Subtab 4K.
In a sworn affidavit, DiNoto stated that on September 20,
1991, when he informed the appellant that the U.S.
Attorney had no interest in pursuing the blackmail
allegation, and that there would be no FBI investigation,
the appellant told him not to tell anyone about *119 the
declination because, if Goblet should learn of it, he might
change his mind about filing for disability retirement. See
IAF, Vol. 5, Tab 23 (DiNoto Affidavit at 5).
The appellant argued below that, despite DiNotos
speculation regarding the appellants motives for not
wishing to disclose the fact that the U.S. Attorney had
declined to pursue the blackmail allegation against Goblet,
the appellant was justified in continuing the detail until the
OIG completed its investigation of the incident. See IAF,
Vol. 1, Tab 3, Subtab 4H; Vol. 5, Tab 22 at 45-46. The
appellant further contended that, if the OIG had found
evidence of wrongdoing by Goblet, an administrative
action could have been taken against him, even if the U.S.
Attorney chose not to press a criminal action against him.
Id. The appellant also asserted that the reason that he did
not want information about the investigation disseminated
in the office was to protect Goblets privacy. Id.
Nevertheless, we find that, regardless of the appellants
original motive for detailing Goblet, there was no basis to
continue the detail once DiNoto had informed the appellant
that the U.S. Attorney would not pursue the matter. We
agree with Garfunkel that, once the appellant learned of the
declination, he should have returned the appellant to his
position and conducted his own investigation into the
allegation against Goblet. See Vol. 7 (Exhibit VV at
27-29). The appellant, however, continued the detail in
reprisal for Goblets protected disclosures to the OIG
and/or OSC. Therefore, we find that the appellants
continuance of the detail constituted whistleblower

reprisal, and that his actions violated the agencys
regulations regarding employee conduct. See 38 C.F.R.
0.735-10(a), 10(b)(4), 10(e), 18, 21(l ) (1993).
The agency failed to establish the third charge by

preponderant evidence.
[19]
With respect to the agencys third charge, the appellant
has not denied giving Goblet the memorandum relieving
him of his duties in the presence of several other
departmental managers. See IAF, Vol. 1, Tab 3, Subtab 4G
(Appellants Declaration at 14). The appellant contends,
however, that he did not plan to give Goblet the
memorandum in the presence of other managers, and that
those managers had already been informed of the detail.
See IAF, Vol. 1, Tab 3, Subtab 4H; Vol. 5, Tab 22 at 51.
Consequently, he argues that his behavior was not
inappropriate. We agree.
There was no misconduct in presenting Goblet with the
letter that informed him of his detail to the library in the
presence of the other managers. These managers had been
notified of the content of the letter. It does not seem
unusual to have other managers present when presenting
an employee with unpopular news. Further, the *120
appellant testified that it was only an accident that the
managers were present at the time that Goblet came to the
office, since the appellant did not specify a time for Goblet
to see him, and these managers were in the appellants
office awaiting the appellants routine weekly national
conference call, rather than waiting to confront Goblet. We
further note that the conference call had not yet begun,
contrary to the proposal notices implication.
Moreover, there is no evidence to demonstrate that the
appellant was attempting to embarrass or humiliate Goblet
and there is no evidence to show that, in fact, Goblet was
embarrassed or humiliated. There is no direct testimony
from Goblet regarding his feelings and the testimony of
others supports the conclusion that Goblet was not
emotionally affected by the manner in which he received
the detail letter.
[20]
The appellant also argued below that the third charge

does not support a finding of whistleblower reprisal
because the allegations set forth in support of the charge do
not constitute a personnel action within the meaning of 5
U.S.C. 2302(b)(8). See IAF, Vol. 5, Tab 22 at 48. We
agree.
Here, the act of transmitting the memorandum notifying
Goblet of the detail did not constitute a personnel action.
See Slake v. Department of the Treasury, 53 M.S.P.R. 207,
12
215 (1992) (the Board found that, although the denial of a

promotion is a personnel action, the cancellation of a
vacancy announcement is not because the Board cannot
extend its jurisdiction over any stage in the stream of
proceedings leading to a personnel action). Therefore,
we find that the agency did not establish by preponderant
evidence that the appellants manner of giving the
memorandum to Goblet constituted either whistleblower
reprisal or a violation of the agencys regulations
concerning employee conduct.
The deciding official did not engage in improper ex parte

communications prior to issuing the agencys decision
letter.
As an affirmative defense, the appellant contended below
that the deciding official, Sanford Garfunkel, engaged in
improper ex parte communications with OSC, which
influenced his decision to sustain the 30-day suspension
against the appellant. See IAF, Vol. 5, Tab 22 at 21-27. In
this connection, the appellant contended that Leslie Lubell,
OSCs contact person for Goblets case, contacted
Garfunkel and informed him that if the agency did not
impose at least a 30-day suspension, OSC would exercise
its right to appeal the action. See id. at 23-24. In support of
his contention, the appellant cited Sullivan v. Department
of the Navy, 720 F.2d 1266, 1271-74 (Fed.Cir.1983). In
Sullivan, the U.S. Court of Appeals for the Federal Circuit
held that improper ex parte communications had occurred
where an agency *121 official against whom the appellant
had filed a grievance had sought to improperly influence
the deciding official to remove the appellant. Id.
[21] [22]
The Board has held that there is no statutory or

regulatory prohibition against ex parte communications
between the deciding official and other agency officials or
persons during the agencys decision making process. See
Anderson v. Department of Transportation, 59 M.S.P.R.
585, 595 (1993). The ultimate decision, however, must be
made by the deciding official. See Fontes v. Department of
Transportation, 51 M.S.P.R. 655, 668 (1991). Garfunkel
stated during his deposition that he had two brief
conversations with Lubell concerning the appellants case,
but that he could not even recall whether it was actually
her that convinced him to impose a 30-day suspension.
See IAF, Vol. 7 (Exhibit VV at 12-13). Since Garfunkel
could not recall whether Lubell even persuaded him that a
30-day suspension was appropriate, we find that whatever
influence OSC had in this case was minimal and did not
rise to the same coercive level found by the court in
Sullivan. See Sullivan, 720 F.2d at 1270-71. Therefore,
since he has not established that the ultimate decision to
suspend him was not made by Garfunkel, the appellant has
not shown harmful error. See Anderson, 59 M.S.P.R. at
595.
The appellants conduct warranted disciplinary action

under 5 U.S.C. 7543, and a 15-day suspension is the
maximum reasonable penalty under the circumstances of
the case.
[23]
The record indicates that the appellant is a member of
the Senior Executive Service (SES). See IAF, Vol. 1, Tab
3, Subtab 4A. An agency may take an adverse action
against an SES employee only for misconduct, neglect of
duty, malfeasance, or failure to accept a directed
reassignment or to accompany a position in a transfer of
function. See 5 U.S.C. 7543(a). Since Congress has
enacted legislation to deter whistleblower retaliation, we
find that the sustained charges constitute misconduct. See 5
U.S.C. 2302(b)(8). We further find that the appellants
violation of the agencys regulations constituted
misconduct. See 38 C.F.R. 0.735-10(a), 10(b)(4), 10(e),
18, 21(l ) (1993).
[24] [25] [26]
Whenever the agencys action is based on

multiple charges some of which are not sustained, the
administrative judge should consider carefully whether the
sustained charges merited the penalty imposed by the
agency. Douglas v. Veterans Administration, 5 MSPB 313,
5 M.S.P.R. 280, 308 (1981). We note that an SES
supervisor must be expected to conform to a higher
standard of conduct than other employees. See Dolezal v.
Department of the Army, 58 M.S.P.R. 64, 71 (1993), affd,
22 F.3d 1104 (Fed.Cir.1994) (Table). Also, an agency is
permitted to take disciplinary action *122 against a
supervisor who retaliates against an employee because of
his protected disclosures. See Eidmann, 976 F.2d at
1407-08. In this case, we find that the maximum
reasonable penalty based on the sustained charges is a
15-day suspension.
ORDER
We ORDER the agency to cancel the appellants 30-day
suspension and to substitute in lieu thereof a 15-day
suspension. See Kerr v. National Endowment for the Arts,
726 F.2d 730 (Fed.Cir.1984). The agency must accomplish
this action within 20 days of the date of this decision.
We also ORDER the agency to issue a check to the
appellant for the appropriate amount of back pay, interest
on back pay, and other benefits under the Office of
Personnel Managements regulations, no later than 60
calendar days after the date of this decision. We ORDER
13
the appellant to cooperate in good faith in the agencys

efforts to compute the amount of back pay, interest, and
benefits due, and to provide all necessary information the
agency requests to help it comply. If there is a dispute
about the amount of back pay, interest due, and/or other
benefits, we ORDER the agency to issue a check to the
appellant for the undisputed amount no later than 60
calendar days after the date of this decision.
We further ORDER the agency to inform the appellant in
writing of all actions taken to comply with the Boards
Order and of the date on which the agency believes it has
fully complied. If not notified, the appellant should ask the
agency about its efforts to comply.
Within 30 days of the agencys notification of compliance,
the appellant may file a petition for enforcement with the
regional office to resolve any disputed compliance issue or
issues. The petition should contain specific reasons why
the appellant believes that there is insufficient compliance,
and should include the dates and results of any
communications with the agency about compliance.
This is the final order of the Merit Systems Protection
Board in this appeal. 5 C.F.R. 1201.113(c).
NOTICE TO APPELLANT
You have the right to request the United States Court of
Appeals for the Federal Circuit to review the Boards final
decision in your appeal if the court has jurisdiction. See 5
U.S.C. 7703(a)(1). You must submit your request to the
court at the following address:
*123 United States Court of Appeals

for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later
than 30 calendar days after receipt of this order by your
representative, if you have one, or receipt by you
personally, whichever receipt occurs first. See 5 U.S.C.
7703(b)(1).
For the Board:
ROBERT E. TAYLOR,
WASHINGTON, D.C.
CONCURRING OPINION
ERDREICH, CHAIRMAN.
OF
BENJAMIN
L.
While I concur with the decision in this case, where one or

more charges are not sustained I believe the Board errs to
engage in deference to the penalty action of the agency, for
we do not have before us the penalty judgment of an
agency to which the penalty selection standards of Douglas
v. Veterans Administration, 5 MSPB 313, 5 M.S.P.R. 280
(1981) must be applied. For the reasons stated in my
dissents in Holt v. United States Postal Service, 63
M.S.P.R. 198 (1994)1 and Tanner v. Department of
Transportation, 65 M.S.P.R. 169 (1994), I would analyze
the facts of this case to identify the appropriate penalty,
applying the standards of Douglas.
As for the Members comments contained in his
concurring opinion, in general I agree with him. When
reviewing the penalty involved in a case, the Board should
defer to the penalty selection judgment made by an agency
because the agency is, of course, in the better position to
adjudge what penalty best fits the sustained charges.
However, as Douglas teaches, the ultimate burden is upon
the agency to persuade the Board of the appropriateness of
the penalty imposed, Douglas, 5 M.S.P.R. at 307, and the
Board must apply the Douglas factors to bring the penalty
within the parameters of reasonableness, Douglas, 5
M.S.P.R. at 306. In other words, in situations where the
charges brought by the agency are sustained on appeal, the
Boards responsibility then is to ensure that the penalty
selected by the agency is within the reasonable limit of
possible penalties.
*124 What the Member fails to address in his concurring
opinion is the inherent logical distinction between cases in
which the Board is reviewing a penalty based on all
charges brought by the agency being sustained, and cases,
as here, in which only some of the charges brought by the
agency are sustained. When all charges are sustained, the
agencys penalty determination was based on those
charges and warrants deference, upon a showing by the
agency of the appropriateness and reasonableness of the
penalty in consideration of the Douglas factors. However,
when some of the charges fail on appeal, it cannot be said
that the agency has made any penalty determination to
which the Board can defer regarding the remaining
charges.2 To defer to the agency in such a situation, the
Member, as I stated in my dissent in Holt, is indulging in a
14
fiction, for at this point with some of the charges not

sustained, it cannot be said that the agency actually made a
penalty determination as to the remaining charges. Holt,
63 M.S.P.R. at 209.
Certainly the agency has taken action; it has enforced a
penalty against the appellant. What is lacking is a reasoned
judgment by the agency as to the penalty, to which the
Douglas standards must be applied. The penalty judgment,
of course, was based on all the charges brought. When
some of the charges are not sustained on appeal, there is no
judgment of the agency regarding the most appropriate
penalty for the misconduct of the remaining sustained
charges. Its judgment was exercised only in consideration
of all of the charges brought. It has not exercised its
judgment in regards to misconduct described by fewer than
the initial charges upon which its penalty was predicated.
Without an exercise of judgment by the agency regarding
the remaining sustained charges, there is nothing to which
the Board can defer.
In a simple example, if an agency removes an employee for
fighting and for being one minute tardy, the agency made a
penalty determination because the agency has determined
that removal is appropriate for fighting and being tardy.
However, if the fighting charge is not sustained on appeal,
the Board should not defer to the agencys penalty
determination because the agency has not determined what
penalty is appropriate for being one minute tardy. It has
made no judgment regarding this single act of misconduct
because it considered both acts of misconduct when
determining a penalty. Without a judgment by the agency
to defer to, the most reasonable path for the *125 Board to
take is for it to determine the most appropriate penalty
given the circumstances of the sustained charges in the
case. Indeed, this is precisely what Douglas dictates:
Whenever the agencys action is based on multiple charges
some of which are not sustained, the presiding official
should consider carefully whether the sustained charges
merited the penalty imposed by the agency. 5 M.S.P.R. at
308.
Recently when reviewing cases in which one or more of

the charges brought by the agency fail on appeal, the
Federal Circuit Court of Appeals chose not to defer to the
agencys penalty. Rather it remanded the case for a
determination of the appropriate lesser penalty.3 I align
myself with the Boards case law beginning in Douglas
and our superior courts most recent proclamations
regarding the appropriate penalty in a case such as this, and
remain convinced that my approach is the better course.
CONCURRING OPINION OF ANTONIO C. AMADOR,
MEMBER.
I write separately to explain that the position set forth in the
Chairmans concurring opinion has been repeatedly
rejected by both the Board and the Court of Appeals for the
Federal Circuit.1
When only some of the charges against an appellant have
been sustained, it is axiomatic that the agency-imposed
penalty is not entitled to special deference;2 nevertheless,
the Board still must determine whether the
agency-imposed penalty exceeds the maximum reasonable
penalty, not determine what penalty would be best or
most reasonable. See Williams v. Department of the Air
Force, 41 M.S.P.R. 173, 179 (1989). That is, the Board
must carefully consider whether the sustained charges
merit the penalty imposed by the agency. *126 Bree v.
Department of Health and Human Services, 49 M.S.P.R.
68, 72 (1991). The process of mitigation is not a
mathematical one and does not require that the penalty
previously imposed must be reduced by the percentage of
the unsustained charges and specifications. See, e.g.,
Valdez v. Department of Justice, 65 M.S.P.R. 390, 394
(1994).
The Chairman basically avers that this process reflects an
erroneous legal standard. He advocates that the Board
should conduct a review of the relevant factors under
Douglas v. Veterans Administration, 5 MSPB 313, 5
M.S.P.R. 280, 306 (1981), and independently determine
the appropriate penalty for the sustained charges. Thus, he
would afford the agencys penalty determination no
deference at all.
The Board, however, is not faced with a choice between
deferring to or not deferring to an agencys penalty
determination. Consistent with Douglas, 5 M.S.P.R. 280,
the Board gives greater deference to agency-imposed
penalties when all of the charges are sustained and less
deference when not all are sustained. In Douglas, the
Board noted that:
Any margin of discretion available to the Board in
reviewing penalties must be exercised with appropriate
deference to the primary discretion which has been
entrusted to agency management, not to the Board.
Id. 5 M.S.P.R. at 301 (emphasis added). Although the
administrative judge should consider carefully whether
the sustained charge merited the penalty imposed by the
agency when not all charges are sustained, and although
the initial decision should contain a reasoned explanation
of the [administrative judges] decision to sustain or
modify the penalty whenever the appropriateness of the
penalty has been placed in issue, the agency-imposed
15
penalty is still entitled to some deference. Id. 5 M.S.P.R. at

308.
I note that, in Douglas, the Board found support in the
legislative history of the Civil Service Reform Act of 1978
(CSRA) for present practice. See Douglas, 5 M.S.P.R. at
298-99. Specifically, the Board found that the legislative
history of the CSRA indicated Congressional intent to
codify [ ] the standard of proof previously used by the
[Civil Service] Commission for misconduct cases, id. 5
M.S.P.R. at 298, and there was no suggestion in the
[CSRA] or its legislative history that Congress sought to
alter the scope of the authority previously exercised by the
Commission in reviewing agency-imposed penalties, id. 5
M.S.P.R. at 299. Furthermore, the limited nature of the
Boards authority to review and to mitigate penalties dates
back to an 1897 civil service rule. Id. 5 M.S.P.R. at
299-300.
To analyze the facts of the case and then to identify the
appropriate penalty, as the Chairman advocates in his
separate opinion, would require overruling some of the
most important holdings in Douglas, *127 i.e., those
related to the limited nature of the Boards authority to
mitigate penalties, and would represent a major departure
from longstanding Board practice. More importantly, this
practice would be inconsistent with many precedential
Federal Circuit decisions.3
For example, in Hayes v. Department of the Navy, 727 F.2d
1535, 1540 (Fed.Cir.1984), the court indicated that the
Board hasthe authority to mitigate an
agency-imposed penalty when it is
clearly excessive with respect to the
sustained charges, i.e., is arbitrary,
capricious or unreasonable or exceeds
the agencys Table of Penalties.
Id. (emphasis added). The court, referring to Douglas,

stated further that:
Any margin of discretion available to
the Board in reviewing penalties must
be exercised with appropriate
deference to the primary discretion
which has been entrusted to agency
management, not to the Board.
Id. (emphasis added). The court added that [t]his view is
confirmed by recent case law. Id.
Likewise, in Beard v. General Services Administration,
801 F.2d 1318 (Fed.Cir.1986), the court rejected the

employees claim that the CSRA requires the Board to
determine independently the proper penalty, and that if the
statute does not so require, it unconstitutionally denied him
his right to a penalty determination by an independent
decisionmaker. Id. at 1321. In rejecting this claim, the
court stated that:
Prior to the [CSRA], it was well established that the
penalty for employee misconduct [was] a matter usually
left to the sound discretion of the executive agency, and
that the penalty could be rejected only if the punishment
exceed [ed] the range of sanctions permitted by statute or
regulation or if the penalty [was] so harsh that it
amount[ed] to an abuse of discretion.
Id. The court stated further that:
This principle reflects the important
policy
consideration
that
the
employing (and not the reviewing)
agency is in the best position to *128
judge the impact of the employee
misconduct upon the operations of the
agency, the prospects for the
employees
rehabilitation
and
improvement, and the need to
maintain
and
encourage
high
standards of conduct by all employees.
Id. In addition, the court noted that it discern[ed] nothing
in either the language or the legislative history of the
[CSRA] that support[ed], much less require[d], the
greater role in mitigating penalties that the employee had
argued that the Board should play. Beard, 801 F.2d at
1322. It stated that:
The conclusion that the Board is to
review agency penalties under the
abuse-of-discretion standard and not
itself to determine the appropriate
penalty comports with the language
and purpose of the [CSRA] and is
consistent with settled principles of
administrative law governing review
of agency penalties.
Id.
Moreover, in Weiss v. United States Postal Service, 700
F.2d 754, 757 (1st Cir.1983), the Court of Appeals for the
First Circuit rejected the appellants assertion that the
Board should review agency penalty determinations under
16
a preponderance-of-the-evidence standard rather than an

abuse-of-discretion standard. In its decision, the First
Circuit noted that, prior to the CSRA, an agencys penalty
determination was committed to agency discretion and
would be reversed only where the punishment exceeded
the range of sanctions permitted by statute or amounted to
an abuse of discretion. Id. at 758. The court stated that:
We see nothing in the [CSRA] that
suggests that Congress intended to
alter that rule. To the contrary, the
legislative history of the [CSRA]
supports our decision that penalty
determinations are judgment calls that
should be left to the discretion of the
employing agency.
Id. The court noted that Congress intended the CSRA to

serve the dual objective of increas[ing] the procedural
protections afforded employees, while also protecting the
right of agencies to be able to maintain the most efficient
workforce possible, id., and found that this purpose waswell served by applying the
preponderance of the evidence
standard to the factual determination
whether or not the employee
committed acts warranting discipline,
but leaving to the agencys discretion
the judgment of what penalty should
be imposed. In that manner, the
MSPB, a neutral adjudicative body,
determines whether the employee is
guilty of the charged conduct, thus

guarding against political abuse and
safeguarding merit principles. Once
the charges are sustained, however,
efficient management is served by
allowing the agency, within broad
limits, to assess the severity of the
penalty *129 necessary ... [to deter
employee misconduct.] To interpret [5
U.S.C.] 7701(c)(1)(B) as does [the
appellant] would be to go far in the
direction of stripping the employing
agency of the type of managerial
authority Congress intended it have,
for under a preponderance standard, a
standard
ordinarily
used
for
determining facts, the MSPB, rather
than the employing agency, would be
the primary decision maker.
Id. at 758-59 (emphasis added). The Federal Circuit in

Beard expressed its agreement with the reasoning in Weiss.
See Beard, 801 F.2d at 1322-23.
All Citations
68 M.S.P.R. 100
Footnotes
1
The agency contended that the appellants conduct violated 38 C.F.R. 0.735-10(a), requiring that agency employees
conduct themselves in a manner reflecting credit upon themselves and the agency; section 0.735-10(b)(4), requiring that
employees avoid the appearance of impropriety; section 0.735-10(e), requiring agency supervisors to set an example for
subordinate employees by dealing with them considerately and impartially, and by showing sincere concern for them as
individuals; section 0.735-18, requiring that employees not engage in conduct unbecoming a federal employee; and
section 0.735-21(l ), prohibiting employees from violating Civil Service laws, rules, regulations, policies and standards.
Although these regulations are no longer in effect, the regulations in effect at the time that the agency took the action
apply in this appeal. See Hill v. Department of the Air Force, 42 M.S.P.R. 187, 190 (1989). The Board has found that an
adverse action commences with the employees receipt of the proposal notice. See Bucci v. Department of Education, 43
M.S.P.R. 558, 562 (1990). Since the appellant received the proposal notice on July 13, 1993, the regulations in effect on
that date apply. See 38 C.F.R. Part 0.735 Subpart B (1993).
Stand-by pay is a special rate of pay for physicians who perform a certain amount of work outside of the specialty for
which they were originally hired by the agency. See IAF, Vol. 6 (Exhibit TT).
The appellant withdrew his request for a hearing. See IAF, Vol. 4, Tab 15.
To the extent that the appellant argued below that Goblet could not be afforded whistleblower status because his prime
motivation in making the disclosures was to malign the appellant and create havoc at the Center, we note that the Board
has specifically rejected the proposition that an employees disclosures are not protected where his primary motivation
was not for the public good, but rather for his personal motives. See Horton v. Department of the Navy, 60 M.S.P.R. 397,
17
403 (1994). See also Frederick, 65 M.S.P.R. at 530-31 (the Board held that personal motivation was not relevant to a
determination of whether an employee genuinely believed that his disclosures were protected under 5 U.S.C.
2302(b)(8)).
5
The blackmail allegation against Goblet arose from a conversation on September 5, 1991, between Goblet and Dr. White
about an August 9, 1989 memorandum that Dr. White had written to the Chief of Staff at the Center two years earlier,
complaining of the Personnel Offices lack of support for the Radiology Department. See IAF, Vol. 2, Tab 4, Subtab 4HH.
During the conversation, Goblet asked Dr. White to withdraw the unfavorable memorandum, which Goblet believed the
appellant would use against him. Id. At that time, Dr. White believed that Goblet was needlessly delaying the submission
to the CO of a justification and request for an increase in his pay. Id. Dr. White interpreted Goblets request as an offer to
act on his physician pay package if Dr. White would withdraw the memorandum, even though Goblet had asked Dr. White
to withdraw the memorandum on several other occasions. Id. Therefore, Dr. White concluded that his pay was improperly
held up by Goblet, and he contacted the appellant regarding the incident. See id.; IAF, Vol. 7 (Exhibit YY at 18).
As the Members concurring opinion notes, the Federal Circuit Court of Appeals recently affirmed the outcome of the
Boards decision in Holt. See Holt v. United States Postal Service, No. 94-3472, 1995 WL 380591 (Fed.Cir. March 13,
1995). However, the decision of the court was simply a one sentence, per curiam, non-precedential affirmance issued
without reason or rationale and without reference to or identification of what arguments and issues were presented to the
court for consideration. Such a decision cannot be said to be an affirmative rejection of the position I put forward in my
dissent to the majority opinion in the Boards Holt decision.
Although the Members concurring opinion argues that this issue is well-settled by the courts, I would disagree. Most all of
the cases relied on by the Member for support of his position involve cases in which all of the charges brought by the
agency were sustained. See Hayes v. Department of the Navy, 727 F.2d 1535 (Fed.Cir.1984), Beard v. General Services
Administration, 801 F.2d 1318 (Fed.Cir.1986), and Weiss v. U.S. Postal Service, 700 F.2d 754 (1st Cir.1983).
See, e.g., Futrell v. Justice, No. 93-3450, 1994 WL 374525 (Fed.Cir. July 14, 1994) (NP) and Litoff v. Air Force, No.
93-3573, 1994 WL 521088 (Fed.Cir. September 26, 1994) (NP).
The Chairman refers to his dissenting opinion in Holt v. United States Postal Service, 63 M.S.P.R. 198, 200 (1994). The
court recently affirmed the Boards decision in that case. Holt v. United States Postal Service, No. 94-3472, 1995 WL
380591 (Fed.Cir. Mar. 13, 1995).
In the third paragraph of his separate opinion, the Chairman claims that I have failed to address the inherent logical
distinction between cases where we have sustained all the agencys charges and those cases where we have sustained
only some of the charges. In our duel, in which he persists in his attempt to impose a new legal standard, the Chairman
jousts with references to an inherent logical distinction and a legal fiction, inadequate weapons compared to the
weight of court decisions to which I have cited above.
I note that the Chairman has cited to two non-precedential court cases, Futrell v. Department of Justice, 31 F.3d 1177
(Fed.Cir.1994) (Table), and Litoff v. Department of the Air Force, 36 F.3d 1117 (Fed.Cir.1994) (Table), as support for his
conclusion that the courts most recent proclamations apply his standard. Recognizing that non-precedential cases may
not be cited as authority, I will not examine the particular circumstances of those two cases; I note, however, that the
courts decision to remand a case for a penalty determination does not indicate that the court has changed its guidance
under the standards of Douglas and other fundamental decisions. It may indicate that the court found the penalty
inappropriate under the circumstances, i.e., so disproportionate to the offense that the Board abused its discretionary
review authority. See, e.g., Parker v. United States Postal Service, 819 F.2d 1113, 1116 (Fed.Cir.1987).
End of Document
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