Petitioner: Special Counsel
Respondents: Richard F. Lee, Diane L. Beatrez
Decision Number: 2010 MSPB 89
Docket Numbers: CB-1215-08-0014-T-1, CB-1215-08-0015-T-1
Issuance Date: May 14, 2010
Appeal Type: Disciplinary Action - Prohibited Personnel Practice
Special Counsel Actions
- Disciplinary Actions
Board Procedures/Authorities
- Criteria for Board Review (Fact Findings)
Evidence – Credibility – Circumstantial/Direct
Penalty
The Special Counsel petitioned for review of an initial decision issued by the administrative law judge that dismissed the Special Counsel’s complaints against the respondents for committing a prohibited personnel practice. The Special Counsel alleged that the respondents, in their roles as Human Resource (HR) Specialists for the U.S. Coast Guard, violated 5U.S.C. §2302(b)(6) by granting a preference or advantage to Coast Guard Senior Legal Instrument Examiner Eric Woodson (GS-8) for the purpose of improving his prospects of obtaining a promotion to a GS-11 supervisory position.
When the supervisory position was first announced, parallel vacancy announcements were issued: a delegated examining unit (DEU) announcement open to all qualified U.S. citizens; and a merit promotion announcement limited to “status eligibles.” Both announcements sought candidates for the GS-11 level only, which had the effect of generally excluding applicants below the GS-9 level. Woodson applied under the merit promotion announcement but was not referred because, as a GS-8 employee, he was ineligible for promotion to GS-11. Commander (CMDR) Laura O’Hare contacted respondent Lee to inquire as to why Woodson had not been referred, and requested that HR “reopen” the DEU announcement and create a new list for referral. Lee testified that CMDR O’Hare specifically wanted to reopen the DEU list so that Woodson’s nongovernmental experience could be considered. In an e-mail to Lee, another HR Specialist (House) instructed Lee to “have Commander O’Hare talk about lack of adequate candidates.” The DEU referral certificate bears a handwritten notation by CMDR O’Hare, stating that she wanted to re-advertise the job “[b]ecause of a lack of sufficient, well-qualified candates.” The vacancy was opened a second time, using both merit promotion and DEU announcements, but the position was still advertised only at the GS-11 level. Beatrez notified Lee via email that she had been told “the reason the job was re-advertised was to try and reach Mr. Woodson,” and explained that she was unable to qualify Woodson at the GS-11 level. Lee notified CMDR O’Hare: “They did not find [Woodson] qualified for the position based on his résumé and how he responded to the KSAs. My recommendation if you want to [consider] him is to cancel and advertise the position as a GS-9 with potential to GS-11.” CMDR O’Hare notified Lee that she wanted the position re-announced as a “GS-9 with potential to GS-11.” CMDR O’Hare further asked that the new solicitation be limited to the Los Angeles/Long Beach local area, and instructed Lee to advertise the vacancy “for the minimum amount of time.” This was done, and Woodson was selected for the position.
In analyzing the decision to re-advertise the position after the first set of vacancy announcements, the administrative law judge found that the email exchange between CMDR O’Hare and HR Specialists might have created the appearance that Lee was advising CMDR O’Hare on how to create a pretext for re-announcing the position, but he credited CMDR O’Hare’s testimony regarding her own motivations, which he found supported a different conclusion: that CMDR O’Hare’s initial failure to understand the complexities of the federal personnel system caused her to be confused as to the best way in which to structure an announcement that would capture candidates with the most relevant experience. Similarly, the administrative law judge found that the email messages regarding the decision to cancel the second set of vacancy announcements would certainly have aroused suspicions, but that the reason that these vacancy announcements were cancelled was a lack of sufficient qualified candidates in the selection pool. Regarding the third vacancy announcement, the administrative law judge credited Lee’s testimony that he believed CMDR O’Hare was not just trying to reach Woodson but was seeking to consider internal candidates who may have had qualifications similar to those of Woodson.
Holdings: The Board granted the Special Counsel’s petition for review, reversed the initial decision, and found that the respondents committed a prohibited personnel practice that warrants discipline:
1. The Special Counsel proved by preponderant evidence that both respondents violated 5U.S.C. §2302(b)(6) when they intentionally assisted CMDR O’Hare in granting an illegal preference for employment to Woodson.
a. Whether the respondents violated 5U.S.C. §2302(b)(6) turns on whether they intended to afford preferential treatment to Woodson. It is not the action itself that violates the law, but, instead, the intent behind the action.
b. The administrative law judge’s analysis of intent rests largely on credibility determinations. Under Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002), the Board must normally defer to the judge’s credibility determinations when they are based upon the observation of the demeanor of witnesses testifying at a hearing. Nevertheless, the Board may substitute its own determinations of fact for those of an administrative judge, even when his credibility findings are based in part on demeanor evidence, if the Board can articulate a sound reason, based on the record, for a contrary evaluation of the evidence. The Board may overturn credibility determinations when the findings are incomplete, inconsistent with the weight of the evidence, and do not reflect the record as a whole.
c. Although the administrative law judge did not ignore the evidence that would support a finding of preferential treatment, his findings and credibility determinations are nevertheless inconsistent with the weight of the documentary evidence and do not reflect the record as a whole. In the Board’s view, the administrative law judge gave a sizable body of particularly telling circumstantial evidence too little weight in favor of some direct testimony that was inconsistent with that body of evidence. As a result, he explained away serious contradictions between the testimony and the other less favorable evidence in the record, crafting an improbable account of the events leading up to Woodson’s appointment to the vacant position.
d. The Board acknowledged that the strongest evidence of intent points not to the respondents, but to CMDR O’Hare, who retired before a hearing could be held on a proposed disciplinary action against her. Nevertheless, “given the rather blatant intention of granting a preference to Woodson that CMDR O’Hare’s communications express to the respondents,” the Board stated that it could not ignore the actions of the respondents, who are HR professionals, “in intentionally facilitating an obvious violation of section 2302(b)(6),” and interpreted that section as reaching conduct that aids and abets another who is violating the statute.
e. The Board found the facts in this case distinguishable from the typical “obey now, grieve later” situation described in Board case law. There is no evidence that CMDR O’Hare ordered the respondents to take actions that would ensure that Woodson appeared on the certificate of eligibles, and neither respondent was one of CMDR O’Hare’s subordinates.
2. After reviewing the respondents’ relative involvement in the violation of §2302(b)(6) under the relevant Douglas factors, the Board determined that the appropriate penalty for Lee was a 45-day suspension without pay, and a 10-day suspension without pay for Beatrez.
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