1. UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL L. HOLT,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0752-11-0427-I-1
DATE: March 27, 2013
THIS FINAL ORDER IS NONPRECEDENTIAL1
Margot A. Fleet, Esquire, Baton Rouge, Louisiana, for the appellant.
Leigh E. Schwarz, Esquire, Portland, Oregon, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
The appellant has filed a petition for review in this case asking us to
reconsider the initial decision issued by the administrative judge, which reversed
the agency’s removal action because the agency committed a due process
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117(c).

2. 2
violation in effecting the action. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
the erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed.2
See Title 5 of the Code of Federal
Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the
filings in this appeal, and based on the following points and authorities, we
conclude that the petitioner has not established any basis under section 1201.115
for granting the petition for review. Therefore, we DENY the petition for review
and AFFIRM the initial decision issued by the administrative judge, which is now
the Board’s final decision. 5 C.F.R. § 1201.113(b).
The agency removed the appellant from the GS-11 IT Specialist position
based on the charges of failure to follow instructions, failure to follow leave
procedures, and inappropriate conduct. Initial Appeal File (IAF), Tab 6, Subtabs
4b, 4f. The agency relied on the appellant’s prior discipline in selecting the
removal penalty. Id., Subtab 4f. The appellant appealed the agency’s action,
asserting a number of affirmative defenses. He alleged that the agency
committed harmful procedural error by violating the collective bargaining
agreement and issuing the decision late, discriminated on the bases of race and
disability in violation of Title VII and the Americans with Disabilities Act (ADA)
and the ADA Amendments Act (ADAAA), retaliated for his whistleblowing in
2
Except as otherwise noted in this decision, we have applied the Board’s regulations
that became effective November 13, 2012. We note, however, that the petition for
review in this case was filed before that date. Even if we considered the petition under
the previous version of the Board’s regulations, the outcome would be the same.

3. 3
violation of the Whistleblower Protection Act (WPA), and discriminated on the
basis of his military service in violation of the Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA). IAF, Tab 1.
Based on the record developed by the parties, including the testimony at
the video hearing held on October 7 and 19, 2011, the administrative judge
reversed the agency’s action. IAF, Tab 50. She found that the deciding official
considered complaints about the appellant, some of which were not recorded in
the appellant’s disciplinary record, including information with regard to a
reassignment because of conduct issues. Id. at 5-10. She found that the appellant
was not on notice of the evidence regarding his reassignment relied upon by the
agency in imposing the penalty. Id. at 11. Thus, she reversed the removal
because a due process violation occurred. She found that the appellant was
entitled to a new constitutionally correct removal procedure and she did not reach
the merits of the appeal. Id. The administrative judge also adjudicated the
appellant’s affirmative defenses, finding that the appellant failed to meet his
burden to prove any of them. Id. at 11-26.
The appellant contends that the administrative judge erred in finding that
he failed to prove his affirmative defenses. Notwithstanding the reversal of the
agency's removal action, the appellant may be entitled to additional relief if he
succeeds in proving his allegations of discrimination under Title VII, the ADA,
ADAAA, and/or USERRA, and/or retaliation for whistleblowing. If the appellant
establishes any of these affirmative defenses, he is entitled to have the adverse
action reversed on the merits, precluding the agency from reinstituting the action.
See Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 4 (2012).
Further, if he shows that the agency's action constituted discrimination in
violation of Title VII, the ADA, and/or the ADAAA, he may be entitled to an
award of compensatory damages for pecuniary losses and for nonpecuniary
losses, such as, but not limited to, emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, injury to character and reputation, and

4. 4
loss of health. See Edwards v. Department of Transportation, 117 M.S.P.R. 222,
¶ 10 (2012); Bohannon v. U.S. Postal Service, 115 M.S.P.R. 629, ¶ 9 (2011). A
violation of the appellant’s rights under the WPA may entitle him to further
corrective action, such as consequential damages. See Jenkins, 118 M.S.P.R.
161, ¶ 13. USERRA states that liquidated damages for a willful violation are to
be awarded in an amount equal to the amount of lost wages or benefits awarded.
38 U.S.C. § 4323(d)(1)(B)-(C). The administrative judge properly adjudicated
the appellant’s affirmative defenses alleging that the agency discriminated on the
bases of race, disability, and military status, and retaliated on the basis of a
protected disclosure.
The appellant asserts that the administrative judge improperly denied some
of the witnesses that he requested. The appellant contends that this denial did not
allow testimony regarding his allegations of disparate treatment and hostile work
environment. Petition for Review (PFR) File, Tab 3. In his petition for review,
the appellant, however, does not identify any denied witness by name or indicate
what testimony any witness would have given regarding the appellant’s
affirmative defenses.
Review of the record shows that the appellant requested 14 witnesses. IAF,
Tab 29, Exhibit E 1. The administrative judge approved 3 of the requested
witnesses as follows: Vickie Hart, a former equal employment opportunity
specialist at the appellant’s workplace who discussed with the appellant his
treatment by his first line supervisor, Zandrew Covington; Kristel Farris, the local
union chief steward, who was aware of grievances filed for harassment,
discrimination, bullying, and retaliation that created a hostile environment; and
Dr. Karen Ofa, the appellant’s treating physician, who was aware of the conflict
between the appellant and Covington and her observations of how the conflict
affected the appellant’s health. Id.; IAF, Tab 40. The administrative judge
denied the remaining witnesses requested by the appellant because their
testimony would be duplicative or not relevant. IAF, Tab 40.

5. 5
The appellant’s summary of the expected testimony of the denied witnesses
shows that several of them, like the approved witnesses, would have testified
about the conflict between the appellant and Covington. None, however, is
identified as expected to testify that the conflict was due to the appellant’s race,
disability, or military status. IAF, Tab 39. A couple of the witnesses would have
testified to matters relating to the appellant’s assertion that he made a protected
disclosure. Id. However, the administrative judge found that the appellant
proved by preponderant evidence that he made the protected disclosure as he
claims. IAF, Tab 50 at 21. Further, none of the expected testimony of the denied
witnesses would have addressed the agency’s treatment of non-whistleblowers.
IAF, Tab 29. The agency’s treatment of non-whistleblowers is one of the factors
used to determine whether it would have taken the action in the absence of the
proven whistleblowing. See Carr v. Social Security Administration, 185 F.3d
1318, 1323 (Fed. Cir. 1999)
An administrative judge has wide discretion to control the proceedings,
including holding prehearing conferences for the simplification of issues and
ruling on exhibits and witnesses. See, e.g., Sanders v. Social Security
Administration, 114 M.S.P.R. 487, ¶ 10 (2010); 5 C.F.R. § 1201.41. The Board
will not overturn the administrative judge's rulings absent a showing of an abuse
of discretion. See, e.g., Sanders, 114 M.S.P.R. 487, ¶ 10. Here, the appellant’s
summary of the expected testimony of the denied witnesses shows that the
administrative judge properly assessed that their testimony would have been
duplicative of the approved witnesses’ testimony regarding the conflict between
the appellant and Covington and are not relevant to his allegations of
discrimination and retaliation for whistleblowing. The appellant has failed to
show that the administrative judge abused her discretion in denying a number of
his requested witnesses.
The appellant also contends that the administrative judge improperly
refused to allow the submission after the close of the record of documents

6. 6
showing that he was a disabled veteran and was honorably discharged from
military service. The administrative judge assumed that the appellant had been
honorably discharged in making her findings regarding whether the appellant
established that the agency had discriminated against him based on his military
status in violation of USERRA. Thus, even assuming that the administrative
judge erred in failing to allow the submission of documents showing that the
appellant was a disabled, honorably discharged veteran, the error did not harm the
appellant’s substantive rights regarding his affirmative defense of discrimination
in violation of USERRA. See Panter v. Department of the Air Force, 22
M.S.P.R. 281, 282 (1984).
Finally, the appellant submits with his petition a Microsoft bulletin
relevant to his protected disclosures. Under 5 C.F.R. § 1201.115, the Board will
not consider evidence submitted for the first time with the petition for review
absent a showing that it was unavailable before the record was closed despite the
party's due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
(1980). The Microsoft bulletin was issued after the close of the record below and
thus it is new. However, the Board will not grant a petition for review based on
new evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980). The appellant’s new evidence goes
to whether he proved by preponderant evidence that he made a protected
disclosure. As noted, the administrative judge found that the appellant met his
burden to show that he made a protected disclosure. Thus, the appellant’s new
evidence is not of sufficient weight to warrant an outcome different from that of
the initial decision and does not provide a basis to grant the petition for review.
Russo, 3 M.S.P.R. 345, 348.

7. 7
ORDER
We ORDER the agency to cancel the removal and to retroactively restore
the appellant effective March 12, 2011. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency's
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board's Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board's Order and of the actions it
took to carry out the Board's Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board's Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board's Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board's Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision

8. 8
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
Discrimination Claims: Administrative Review
You may request the Equal Employment Opportunity Commission (EEOC)
to review this final decision on your discrimination claims. See Title 5 of the
United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit
your request by regular U.S. mail, the address of the EEOC is:

9. 9
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.

10. 10
Other Claims: Judicial Review
If you do not want to request review of this final decision concerning your
discrimination claims, but you do want to request review of the Board's decision
without regard to your discrimination claims, you may request the United States
Court of Appeals for the Federal Circuit to review this final decision on the other
issues in your appeal.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. The court
of appeals must receive your petition for review within 60 days after the date of
this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you
choose to file, be very careful to file on time.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is

11. 11
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD:
Washington, D.C.
______________________________
William D. Spencer
Clerk of the Board