U.S. Merit Systems Protection Board 
Case Report for October 14, 2016 

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


Appellant:  Nikki A. Gardner
Agency:  Department of Veterans Affairs
Decision Number:  2016 MSPB 36
Docket Number:  DC-0752-15-0466-I-1
Issuance Date:  October 7, 2016
Appeal Type:  Adverse Action by Agency
Action Type:  Removal


    The appellant petitioned for review of an initial decision that affirmed her removal on misconduct charges.  The agency removed the appellant from her position as a Contract Specialist on 5 charges of misconduct, which included forging and/or using falsified Government documents or records, misuse of her position, and lack of candor.  After holding a hearing, the administrative judge found that the agency proved all 5 charges, that there was a nexus between the appellant's misconduct and the efficiency of the service, and that the removal penalty was reasonable.  The judge further found that the appellant failed to prove her affirmative defenses that the agency discriminated against her based on race and sex, denied her reasonable accommodation for her disability, and retaliated against her for her EEO activity.  

Holdings:  The Board denied the appellant's petition for review and affirmed the initial decision, but clarified how it analyzes discrimination claims:

1. After reviewing the record evidence and the appellant's contentions on review, the Board found that the administrative judge properly found that the agency proved all of its charges.

2. The administrative judge properly denied the appellant's affirmative defenses.

a. In denying the appellant's race and sex discrimination and EEO reprisal affirmative defenses, the administrative judge applied the evidentiary standards set forth in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015).  In Savage, the Board stated that, when an appellant asserts an affirmative defense of discrimination or retaliation under 42 U.S.C.  2000e-16, the Board first will inquire whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action.  It further stated that, in making her initial showing, an appellant may rely on direct evidence or any of the three types of circumstantial evidence described in Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994), i.e., pretext, comparator or "convincing mosaic," either alone or in combination.  Savage overruled prior Board decisions to the extent that they erroneously held that, to establish such a claim using circumstantial evidence, an appellant must provide evidence showing a "convincing mosaic" of discrimination or retaliation.

b. In Ortiz v. Werner Enterprises, Inc., No. 15-2574 (7th Cir. Aug. 19, 2016), the Court of Appeals for the Seventh Circuit recently clarified its explanation in Troupe that the phrase "convincing mosaic" was not meant to impose a new, separate legal requirement or to serve as a legal test, but was instead "designed as a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence."  Ortiz again rejected the proposition that "evidence must be sorted into different piles, labeled 'direct' and 'indirect,' that are evaluated differently," instead holding that "all evidence belongs in a single pile and must be evaluated as a whole."  

c. The Board clarified that Savage does not require administrative judges to separate "direct" from "indirect" evidence and to proceed as if such evidence were subject to different legal standards, or to require appellants to demonstrate a "convincing mosaic" of discrimination or retaliation.  Instead, as stated in Savage, the dispositive inquiry is whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action.  

d. Applying these principles to the present case, the Board found that the appellant failed to establish prohibited discrimination or retaliation.  


Petitioner:  Alesteve Cleaton
Respondent:  Department of Justice
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2015-3126
Issuance Date:  October 13, 2016

Statutory Construction

    At issue in this case was whether Cleaton had been convicted of a felony under 5 U.S.C.  7371, which mandates the removal of any law enforcement officer who is convicted of a felony.  Cleaton was a Correctional Officer with the Bureau of Prisons.  In December 2013, he was indicted in Virginia State court on a felony charge for possession of marijuana with intent to distribute.  During a hearing on March 20, 2014, Cleaton pled no contest to the felony charge pursuant to a plea deal.  On May 6, 2014, the trial court entered an order noting that "defendant was arraigned and plead [sic] guilty to the charge in the indictment," and noting that "having heard the evidence, [the court] accepted defendant's plea of guilty, and found him guilty of possess[ing] marijuana with intent," but deferred the imposition of the sentence "upon the condition that defendant cooperate fully with the requests for information made by the Probation Officer."  On May 9, 2014, the Bureau of Prisons proposed Cleaton's removal under section 7371, which was effected on May 31, 2014.  Following his his removal, Cleaton obtained new counsel and entered into a revised plea agreement, which added a misdemeanor charge for contempt, but did not change Cleaton's no contest plea to the felony.  Pursuant to the new plea agreement, the court "withheld a finding [of guilt] for a period of 2 years," placed Cleaton on supervised probation for 2 years and, upon successful completion of the probation period, the charges would be dismissed.  Cleaton argued that, pursuant to the revised plea agreement, the court withheld a finding of guilt and therefore he was not convicted of a felony on May 6, 2014.  The Board disagreed and upheld Cleaton's removal.  

Holdings: The court affirmed the Board's decision affirming Cleaton's removal:

1. The court stated that it must first determine whether state or federal law governs the meaning of "conviction" under section 7371(b), and second, whether Cleaton's plea constitutes a conviction for purposes of that section.  

2. The court held that federal law governs the meaning of "conviction."  Under federal law, an individual can be "convicted" for purposes of section 7371(b) "once guilt has been established whether by plea or by verdict and nothing remains to be done except pass sentence."

3. Because guilt was established on May 6, 2014, the Board correctly determined that Cleaton was convicted of a felony for purposes of 5 U.S.C.  7371(b) as of that date.  In so holding, the court stated:  “Congress enacted this statute to require the immediate removal of a law enforcement officer convicted of a felony.  It would be inconsistent with both the plain language of the statute and Congress’s intent if we were to hold that, although Mr. Cleaton was convicted of a felony in May 2014 that has not been overturned on appeal, he must be reinstated and awarded back pay because the initial plea agreement was revised to include additional criminal activity.”

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Hambrick v. U.S. Postal Service, No. 2016-1986 (Oct. 7, 2016) (MSPB Docket No. DC-0752-14-0454-C-1) (affirming the Board's decision, which denied Hambrick’s petition to enforce a settlement agreement that resolved a Board appeal as to all of Hambrick's “live claims” of noncompliance, referring other, later-presented allegations of noncompliance for separate consideration by the Board’s a regional office)

Pistilli v. Merit Systems Protection Board, No. 2016-1660 (Oct. 11, 2016) (MSPB Docket No. NY-0752-13-0032-I-2) (affirming the Board's decision, which dismissed Pistilli's claim of an involuntary retirement for lack of jurisdiction)

Edwards v. U.S. Postal Service, No. 2016-1667 (Oct. 12, 2016) (MSPB Docket No. NY-0752-15-0030-I-1) (vacating and remanding the Board's decision upholding Edwards's demotion for improper conduct, where the Board notified the court of subsequent events that may affect its determination of whether the agency imposed an appropriate penalty)  

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