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Rogers12-3089

Rogers12-3089

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Published by: FedSmith, Inc. on Sep 06, 2012
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05/04/2014

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N
OTE
: This disposition is nonprecedential.
United States Court of Appealsfor the Federal Circuit
 __________________________  ANTHONY ROGERS,
 Petitioner,
v.DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
 __________________________ 
2012-3089
 __________________________ 
Petition for review of the Merit Systems ProtectionBoard in case no. DA0752110058-I-1.
 __________________________ 
Decided: July 13, 2012
 __________________________ 
 A 
NTHONY 
R
OGERS
, San Antonio, Texas, pro se.B
 ARBARA 
E.
 
T
HOMAS
, Trial Attorney, Commercial Liti-gation Branch, Civil Division, United States Departmentof Justice, of Washington, DC for respondent. With heron the brief were S
TUART
F.
 
D
ELERY 
, Acting Assistant Attorney General, J
EANNE
E.
 
D
 AVIDSON
, Director, andS
COTT
D.
 
 A 
USTIN
, Assistant Director.
 __________________________ 
 
ROGERS
v.
VA 
 2
Before B
RYSON
, P
ROST
, and R
EYNA 
,
Circuit Judges
.P
ER
C
URIAM
.Petitioner Anthony Rogers appeals the decision of theMerit Systems Protection Board (“Board”) affirming theDepartment of Veterans Affairs’s (“Agency”) removal of Mr. Rogers from his position as a human resource special-ist. For the reasons set forth below, we
affirm
.I.
 
B
 ACKGROUND
 Mr. Rogers was a human resources specialist in theSan Antonio office of the Agency’s South Texas HealthCare System. In a letter of proposed removal datedMarch 31, 2010, Mr. Rogers’s supervisor, Jerry A. Erwin,proposed that Mr. Rogers be removed from Agency em-ployment based on three charges. The first charge, “Al-tering Official Government Documents,” related to actionsMr. Rogers allegedly took when initiating the hiring of anew employee. Specifically, the charge alleged that Mr.Rogers copied a previously authorized SF-52 form for onecandidate and then used “white out” to enter a new can-didate’s information on the form instead of filling out anew, blank form for supervisory approval, thereby violat-ing Agency policy requiring supervisor approval beforeinitiating a personnel action. The second charge, “Failureto Safeguard Confidential Information,” was based on tworelated specifications, both surrounding an alleged De-cember 29, 2009 incident involving Mr. Rogers and an Agency employee, Charles Harpel. The first specificationalleged that Mr. Rogers provided Mr. Harpel with Mr.Rogers’s own Social Security number and passwords toaccess human resources databases containing confidentialinformation, even though Mr. Harpel was not authorizedto access the database. The second specification allegedthat Mr. Rogers asked Mr. Harpel to use Mr. Rogers’s
 
ROGERS
v.
VA 
 3
login information to download a referral certificate (i.e., adocument listing applicants for a vacancy) from a humanresources database. According to the specification, theinformation in the referral certificates contained confiden-tial information, and giving Mr. Harpel access to suchinformation would have resulted in privacy violations.
1
 Finally, the third charge, “Failure to Follow Instructions,”alleged that Mr. Rogers released referral certificates to an Agency component without supervisor approval afterhaving been specifically instructed not to release person-nel documents without such prior approval. Approximately three weeks after the date of the letterof proposed removal, Mr. Rogers submitted a filing withthe U.S. Office of Special Counsel alleging, inter alia, thathe previously filed a complaint with the Board in whichhe claimed to be a whistleblower subject to retaliation;after the filing of his whistleblowing complaint, he noti-fied his supervisors of violations of Agency policies bycertain Agency employees; and he had been served with aproposed removal and placed on authorized leave status.Then, on April 26, 2010, Mr. Rogers submitted hiswritten response to the charges in the removal letter,stating that “[t]he Agency is aware that I am a whistle-blower with pending hearings” and that an adverse per-sonnel action “must not be taken as a reprisal for theproper exercise of my legal or administrative appealrights.” J.A. 52. He attached his previous filing with theOffice of Special Counsel as an exhibit to his response.
1
The administrative judge ultimately mergedthese two specifications, finding that they were based onthe same conduct.
Rogers v. Dep’t of Veterans Affairs
, No.DA0752110058-I-1, at 11 (M.S.P.B. Feb. 16, 2011).

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