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BARBARA R. KING, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.
DOCKET NUMBER DA-0752-09-0604-B-1
DATE: October 3, 2012
Barbara R. King, San Antonio, Texas, pro se. Heather A. Masten, Esquire, Randolph Air Force Base, Texas, for the agency. BEFORE Marie A. Malouf Administrative Judge
INITIAL DECISION On July 20, 2009, the appellant appealed the action of the Department of the Air Force which demoted her effective July 19, 2009. King v. Department of the Air Force, MSPB Docket No. DA-0752-09-0604-I-1. The appellant asserted that her demotion was retaliation for protected whistleblowing. Because the
appellant reported that she had first filed a request for correcti ve action with the Office of Special Counsel (OSC), the appeal was dismissed as premature. Appeal File (AF-0604), Vol. 1, Tab 9. The appellant filed a second appeal after the OSC advised the appellant that it was closing the investigation into her compla int. King v. Department of the Air Force, MSPB Docket No. DA-0752-10-0200-I-1. (AF-0200), Vol. 1, Tab 1. That appeal was dismissed as untimely. AF-0200,
2 Vol. 13, Tab 45. The appellant filed a petition for review (PFR) of that decision. PFR File, Tab 1. On PFR, the Board dismissed DA-0752-10-0200-I-1 for lack of jurisdiction. PFR File, Tab 9. The Board reopened DA-0752-09-0604-I-1 and remanded the appeal for adjudication. Id. This decision is based on the parties’ written submissions. 1 Based on the following analysis and findings, the agency’s action is REVERSED. ANALYSIS AND FINDINGS Background The appellant was employed as the Sexual Assault Prevention & Response Program Manager at Sheppard Air Force Base, Texas. 2 AF-0604, Vol. 2, Tab 6, subtab 4a. On February 26, 2009, Brigadier General Otis Mannon initiated a
Command Directed Investigation (CDI) concerning allegations that the appellant interfered with an ongoing Office of Special Investigations (OSI) investigation into the death of Airman “E.” AF-0604, Vol. 4, Tab 6, subtab 4f at 9. On
February 26, 2009, Mannon informed the appellant that she was the subject of the CDI into her involvement in the OSI investigation. Id. at 10. Mannon
temporarily reassigned her and prohibited her from having contact with any members of the SARC office or having any discussions with SARC personnel at higher headquarters. Id. On March 12, 2009, Mannon expanded the CDI to investigate allegations that the appellant, “failed to maintain appropriate and
The appellant withdrew her hearing request. AF-0604, Vol. 9, Tab 3. The record in DA-0752-10-0200-I-1 was incorporated into the record of DA-0752-09-0604-B-1. AF0604, Vol. 9, Tab 5. The parties were provided copies of the file indexes in both appeals. AF-0604, Vol. 9, Tab 7.
The appellant was also referred to as the Sexual Assault Response Coordinator (SARC).
3 effective professional working relationships and failed, at times, to exercise sound professional judgment.” Id. at 7. Following completion of the CDI, 3 the agency demoted the appellant to the position of Relocation Assistance Technician based on charges of:
(1) unacceptable behavior; (2) dereliction of duty; (3) negligent performance of duties; and (4) failure to follow (or disregard of) instructions. AF-0604, Vol. 4, Tab 6, subtab 4e. The agency must prove its charges by preponderant evidence. 4 5 U.S.C. § 7701(c)(1)(B). The appellant denied that she engaged in the alleged misconduct. She
asserted that the demotion action was taken as a result of a flawed internal investigation based on the allegations of the Sheppard OSI’s Detachment Chief, Timothy Habel. AF-0604, Vol. 1, Tab 1. The appellant asserted that the agency’s action was the result of gender and age discrimination; and was retaliation for protected whistleblowing activity and for her participation in the equal employment opportunity (EEO) process.
The CDI investigator, Risa Hillard, interviewed witnesses and the transcripts of the interviews are contained in the record. AF-604, Vols. 4-7. Hillard, a civilian employee, conducted interviews of 37 individuals during the period from February 27, 2009 through March 23, 2009. AF-0604, Vol. 4, Tab 6, subtab 4f at 11. The agency relied on the interviews to support its action. In considering the probative weight of the interviews, I have considered the fact that Hillard routinely asked leading questions; she made comments concerning the evidence; she informed witnesses of information provided by other witnesses; and made statements about the appellant and at least one sexual assault victim that suggested some personal bias. It appears that Hillard was trying to elicit information that would conform with or corroborate the allegations made by the command.
Preponderant evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2) (2012).
4 The agency failed to establish by preponderant evidence that the appellant engaged in unacceptable behavior Under the charge of unacceptable behavior, the agency set out eight specifications. In specification one, the agency alleged: Sometime in December 2008, during a SARC Case Management Board meeting, you briefed wing leadership that an alleged rape victim (last name “A”) 5 had vaginal tearing, according to the Sexual Assault Nurse Examiner, which statement was untrue. Further, you used the untrue statement to influence the victim’s commander, Lt Col Bobb, and/or first sergeant, MSgt Crowder, to refrain from placing the victim in Transition Flight and to place no restrictions on the victim’s liberty, which conduct was unbecoming. AF-0604, Vol. 4, Tab 6, subtab 4(e) (punctuation and abbreviations as in the original). The agency asserted that statements from Crowder, Bobb, and OSI Agent Timothy Habel, showed that the appellant provided false information in order to “pressure the command from putting the female victim in transition flight” based on her personal and professional opinions. AF-0200, Vol. 13, Tab 37 at 4; AF0604, Vol. 9, Tab 13 at 9. The agency argued that the appellant’s statements concerning the incident were inconsistent. Id. Master Sergeant Maurie Hall reported that he is a Superintendent with the Office of Special Investigations (OSI). AF-0604, Vol. 4, Tab 6, subtab 4f at 131132. He stated that he interacted with the appellant in his work and he identified problems that he perceived with the appellant. He indicated that in the case involving victim “A”, the sexual assault nurse examiner (SANE) conducted an examination. He related that the SANE submitted a report and there was also an interview with her. 6 Id. at 132-33. He said that the SANE did not mention that
The agency set out the names of victims in the proposal notice. In this decision, I have identified the victims by alphabetical letters in order to protect their privacy.
The record does not contain a copy of the SANE report and there is no statement from the SANE or summary of that alleged interview.
5 “A” had any vaginal tearing. Id. at 133. Hall related that his boss, Habel, told him that the appellant mentioned to someone that “A” had vaginal tearing. Hall opined that the appellant’s statement concerning “A” and the vaginal tearing was misleading or incorrect. Id. Habel, the Special Agent in Charge of the Office of Special Investigations (OSI) at Sheppard Air Force Base (Sheppard), reported that he learned the appellant had told several individuals that a victim had vaginal tearing but the sexual assault examination stated there was no trauma. AF -0604, Vol. 4, Tab 6, subtab 4f at 108-09. He indicated that the appellant said the SANE nurse
provided the information to her, but the OSI was not able to confirm that information. Id. Lieutenant Colonel Matthew Bobb, Commander of the 356 th Training Squadron, reported that he interacted with the appellant in her capacity as the SARC. AF-0604, Vol. 6, Tab 4f at 582. He indicated that, in his opinion, the appellant could, at times be “overbearing” and “intrusive into commander issues.” Id. For example, he related: …there was an incident where, you know, she said a doctor found something during an exam of a female, which was proven – and I don’t have anything in writing from the doctor, but hearing it secondhand from OSI and my First Sergeant is, what she stated was not true. So she said there was evidence of a rape and the doctor – I’d never got anything from OSI or my First Sergeant saying yes, this evidence was given by the doctor. AF-0604, Vol. 6, AF Tab 4f at 583. Bobb stated that he never witnessed the appellant engage in any unprofessional or inappropriate conduct with any person on base. Id. at 584. Further, he explained his belief that the appellant always had good intentions and she wanted to protect victims. Id. at 585. Master Sergeant Regan Crowder reported that he worked with the appellant on two occasions. AF-0604, Vol. 6, Tab 6, subtab at 446. He indicated his belief that, on one occasion, an underage airman, “A”, had too much to drink and started “propositioning guys.” Id. He said that “A” ran out of the night club yelling that
6 she wanted to have sex with everybody, and she then said that “she had to pee, and she started taking off her clothes.…” Id. at 446-47. He indicated that several Seabees came over and tried to keep “A” dressed and they held her down while she was trying to kick and hit them. Id. at 447. Crowder stated that the Security Forces arrived and transported “A” to the hospital where she was treated for alcohol poisoning. Id. at 447-48. He said that he went to the pick her up at the hospital, and she asked him how she got bruises on her legs. He replied that he did not know. 7 Id. at 448. According to Crowder’s interview responses, the agency was already going to separate “A” from the Air Force, but there was a problem with her record, and it was decided that she would be moved to the Transition Flight (T-Flight). 8 Id. Crowder reported that he later got a call from the appellant who informed him that “A” had been raped. Id. He said that he asked her when and the appellant replied that it was the night “A” had been drinking. Id. at 448-449. He stated that he told her that “A” could not have been raped that night because she was in custody and he explained the events of the night. Id. at 449. He indicated that when he informed the appellant that “A” was going to be moved to T-Flight because she was so disruptive, the appellant replied that her boss, Colonel David Norsworthy, did not want any females to be assigned to T-Flight because it was unsafe for them. Id. at 449 and 472. Crowder stated that he believed the
appellant was lying to him. AF-0604, Vol. 6, Tab 6, subtab at 449-51. Referring to “A”, he stated that “this young lady, she was just one disaster after another disaster. We couldn’t control her and the things she was doing weren’t minor
He indicated that, at that time, he was not aware that she had been trying to take her clothes off. AF-0604, Vol. 6, Tab 6 at 448.
Under AETC Instruction 36-2216, Chapter 23, nonprior service airmen who are discipline problems are segregated from the military training flight pending a discharge or court martial. AF-0604, Vol. 7, Tab 6, subtab 4j at 22.
7 things, they were – taking off your clothes and trying to pee in public is not a minor thing.” Id. Crowder reported that Bobb decided to let “A” out of the T-Flight but he imposed restrictions on her. Id. Then, he said that the appellant called and wanted the restrictions lifted because “A” had been traumatized. Crowder said that he told the appellant that he could not “see how she’d gotten raped unless it happened at the hospital,” and the appellant replied that the rape examination showed vaginal lacerations. Id. at 452. He said that at that point, he
recommended that they do what the appellant wanted because he believed the appellant when she said “A” had been raped. Id. Crowder stated that a few days later he got a call from OSI Agent Hall about the incident, and he concluded from their conversation that “A” did not have any vaginal lacerations and that the appellant had lied to him a second time. Id. at 453. He stated that he later found out that there were no vaginal lacerations and that “A” had refused a vaginal examination. He indicated that he confronted the appellant about the situation , and the appellant told him that she was not present for the exam – that a nurse told her about the lacerations. Id. at 453-54. He opined that “A’s” case was an easy case, but because of the appellant, it ended up dragging on. Id. at 454. Crowder denied that he had a personality conflict with the appellant, but he related that his next door neighbor went out on a date with the appellant and that the neighbor came back from the date completely “freaked out.” AF-0604,
Vol. 6, Tab 6, subtab at 464-65. He said that he had not heard anything good from any first sergeant who had dealt with the appellant. Id. He stated that he filed a complaint against the appellant because although he believed in catching sexual offenders, he was terrified about false accusations and the harm they could do to a person. Id. With regard to the OSI, Crowder reported that the OSI was “infuriated” with the appellant. He said that the OSI personnel made it known that they felt the appellant was meddling and that she kept them from doing what they needed to do. AF-0604, Vol. 6, Tab 6, subtab at 467.
8 Colonel Norsworthy informed the CDI investigator that he began supervising the appellant in August 2008. AF-0604, Vol. 4, Tab 6, subtab 4f at 47. He reported that they had a good working relationship . AF-0606, Vol. 4, Tab 6, subtab 4f at 37-38. He stated that the appellant was very passionate about being a victim advocate. He noted, however, that there were almost forty victim advocates who were trained to work with the victims, and he had told the appellant that she needed to be less involved with the victims and more involved with her supervisory duties. Id. at 38-39. Further, Norsworthy related that, on occasion, he had informed the appellant that she was “out of her lane a little bit.” Id. He explained that the appellant had occasionally interfered with the squadron commander or first sergeant and that the appellant needed to realize that most of the victims were active duty airmen who were answerable to their chain of command, and the appellant was not in their chain of command. Id. Norsworthy stated that he did not recall the details of “A’s” case. 9 AF0604, Vol. 4, Tab 6, subtab 4f at 67. When asked about the T-flight, he replied that airmen were put in the T-flight when the commander of the airman determined that they were disruptive in the dormitory and they were going to be discharged. Id. at 66-67. He explained that the airman is sent to the T-Flight until the agency could get the airman out of the organization. He referred to suc h an airman as a “cancer” and related that the placement in the T -Flight was to a “kind of holding cell until they’re discharged.” Id. at 67. Norsworthy reported, however, that at the time the matter with “A” arose, there were concerns about women being assigned to the T-Flight. Id. at 67-68. He related that there was no protected restroom for females in the T-Flight facility; there were problems with the restroom door; and there were concerns about the safety of females in that facility. Id. 68-69.
The investigator “refreshed” Norsworthy’s memory of “A” by reporting that “A” was a “female and she started saying all kinds of lewd things at one of the clubs on base. She started trying to take her clothes off…” AF-0604, Vol. 4, Tab 6, subtab 4f at 67.
9 During her CDI interview, the appellant stated that her role as the SARC involved providing services for sexual assault victims, providing prevention and awareness training, and acting as an advisor to senior leadership on sexual assault programming, policy, and regulatory guidance. AF-0604, Vol. 7, Tab 6,
subtab 4f at 696. She indicated that often first sergeants and commanders saw things in a different way than she did, and she tried to provide them with information about her professional concerns. AF-0604, Vol. 7, Tab 6, subtab 4f at 712. The appellant stated that she did not recall whether she informed Crowder that “A” was raped or that she had vaginal lacerations. AF-0604, Vol. 7, Tab 6, subtab 4f at 752-53. The appellant related that she would not have been present during the SANE examination, and if she provided such information, it must have come either from the SANE or the victim’s advocate. Id. at 753. She confirmed that something so significant should have been documented in the case file. Id. In her written response to the charges, the appellant indicated that the information came from “A’s,” victim advocate, Mary Bogar, who attended the case management meeting and participated in the discussion with the commander. AF 0604, Vol. 2, Tab 6, subtab 4d at 6. Further, the appellant related that Bogar’s case notes were on file in the SARC office and those notes should reflect her conversation with the SANE nurse. Id. The agency did not provide copies of Bogar’s notes, nor does the record reflect that the agency made any effort to obtain those notes. Id. The appellant requested Bogar to provide an affidavit. In a responsive e mail, Bogar confirmed that she was the victim advocate for “A” for a short time, she was present when the SANE nurse spoke with “A;” and Bogar attended that emergency case management meeting. Agency Ex. 6, AF -0200, Vol. 13, Tab 41. Bogar declined to provide an affidavit, however, and complained that she did not receive payment for the hours she worked on the case. Id.
10 The appellant explained that the T-Flight was not a good place for young women because the men had free rein on the upper floor and there were questions about the security of the women. Id. at 754. The appellant noted that because of the security issues, the women trainees did not have access to the same things as the men trainees; there were no female staff members on the T-Flight; there had been problems with the door to the women’s hallway; and there was no security for a woman in the bathroom or shower. Id. at 755. She also said that she had received reports of sexual assault from the T-Flight. Id. at 756-57. With regard to “A”, the appellant said that she was kept in her previous unit but with restrictions. AF-0604, Vol.7, Tab 6, subtab 4f at 755. The
appellant confirmed that she asked that some of the restrictions be lifted . Id. at 755-56. She indicated that “A” was told not to speak with anyone, that she could not have any reading materials, except a newspaper, and she was not allowed to leave her room except for meals. Id. at 756. She stated that she requested a relaxing of the restrictions because they were isolating. The appellant explained that reporting a sexual assault is already isolating and raises emotional issues. Id. Although specification one is set out under the agency’s charge of unacceptable behavior, the description of the conduct shows that the agency charged the appellant with falsification of the information concerning “A”. The specification alleges that the appellant made an untrue statement to the wing leadership in order to influence “A’s” commander. AF Vol. 4, Tab 6, subtab 4e. The proposing and deciding official, Mannon, noted in his evaluation of the Douglas 10 factors that “making a false statement in order to manipulate an outcome” was detrimental to the agency’s core values. AF Vol. 2, Tab 6,
subtab 4c. Further, Mannon indicated that the conduct described in specification one is similar to deliberate misrepresentation. Id.
In Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) the Board set out factors to consider in making penalty determinations.
11 To determine how a charge should be construed and what elements require proof, the Board looks at the structure and language of the proposal and decision notice. See Boltz v. Social Security Administration, 111 M.S.P.R. 568, ¶ 16
(2009). In this appeal, I find that the information set forth in the specification and the evaluation by the deciding official show that the agency charged the appellant with falsification. Id. at ¶ 18. To prove a charge of falsification, the agency must establish that the appellant knowingly provided wron g information with the intention of defrauding, deceiving, or misleading the agency. Id. at ¶ 19. The agency alleged that, during a SARC Case Management Board meeting, the appellant briefed the wing leadership that the SANE had informed her that “A” had vaginal tearing. The agency failed to submit a statement from the SANE or the SANE’s report to show what the SANE found or what the SANE told the appellant or Bogar concerning “A”. It appears that the OSI agents concluded that the omission of such information from the SANE report alone, by itself, established that the appellant was lying. However, the agency failed to provide any additional information or clarification from the SANE, Bogar, or from the SARC office. It is plausible that the SANE informed Bogar and/or the appellant that “A” had vaginal tears, but failed to include that information in the SANE report, or that Bogar provided that information to the appellant . Absent evidence that the appellant was lying about what the SANE and/or Bogar told her concerning “A”, or that the appellant was attempting to deceive the agency concerning “A”, I find that the agency failed to meet its burden of proof. Further, the appellant’s concerns about the T-Flight and the restrictions imposed on “A” do not appear unwarranted; it was the appellant’s job to relate those concerns to the wing command and to make recommendations. Absent any explanation why expressing those concerns and making recommendations was inappropriate, I find that the agency failed to demonstrate that the appellant’s conduct was unbecoming. Specification one is not sustained.
12 The agency’s second specification is not sustained. In specification two, the agency alleged the following: On or about 3 December 2008, you entered the OSI office at Sheppard without prior notice, while an investigation was ongoing, and confronted two OSI agents in the lobby about their “making” an alleged rape victim (last name “B”) return to the crime scene. You added that if you had been there, you would have st opped them from doing so, which conduct was unbecoming. AF-0604, Vol. 4, Tab 6, subtab 4(e). Tech Sergeant Chelsea Harris, an OSI Special Agent related that she interacted with the appellant in the course of her job. AF -0604, Vol. 5, Tab 6, subtab 4f at 163-64. She stated that the appellant is very passionate about the victims she works with. Id. at 164. Harris reported that she did not have any problems working with the appellant until December 2008, during an investigation she was working with Agent Bradley Adcock. Id. She stated that during an interview, she and Adcock asked victim “B” if she would go to the alleged crime scene, the parade grounds, in order to locate exactly where the event happened and execute a proper forensic examination of the area. Id. According to Harris, “B” indicated it was okay and they went to the scene with “B” and her victim advocate. Id. at 165. Harris stated that, as they got to the parade grounds and up to the area, “B” stated that she did not want to go any closer. Id. Harris said that they told “B” that Harris would walk over to the area, and they asked “B” to let them know when Harris was in the right area. Id. According to Harris’ statement, “B” complied with their request and Adcock started taking pictures. Id. Harris reported that “B” was having some anxiety, but when asked if she was okay, “B” replied that she was okay. Id. Harris said that as they got back into the vehicle and left the scene, “B” became more anxious, but they returned to the OSI office and continued with the interview. Id. at 166. Harris said that she asked “B” whether she needed a break but “B”
indicated she was okay to continue. Id.
13 Harris reported that later in the day, the appellant came into the OSI office lobby and informed Harris that “B” had a complete breakdown after the interview. AF-0604, Vol. 5, Tab 6, subtab 4f at 166. According to Harris, the appellant stated that if she had known that the OSI agents were going to make “B” go to the crime scene, she would not have allowed it. Id. Harris said that she told the appellant that the agents had not made “B” go to the crime scene; rather, she had agreed to go. Id. at 166-67. Harris said that the appellant replied that of course “B” would think that she had to go, because “B” was only an airman and Harris and Adcock were OSI agents. Id. at 167. Harris stated that she explained what had happened to the appellant. Harris asserted that she had “proven that we didn’t do anything against her or force her to do something rea lly horrible.” Id. at 169. Harris stated that she made a memorandum for the record because she did not want anyone to think that she and Adcock had forced “B” to go to the scene, or that she was not doing her job properly. 11 Id. at 160-79. Harris did not indicate why the agents continued after it was apparent that “B” was agitated and she stated she did not want to go any further. Staff Sergeant Bradley Adcock, an OSI agent, reported that he interacted with the appellant in her capacity as the SARC. AF-0604, Vol. 5, Tab 6,
subtab 4f at 207-208. He indicated that he had been at the base since January 2006, and that he only had one instance where he thought the appellant was disrespectful toward him. Id. at 208. He related that his boss, Habel, had
directed a new protocol for interviews. He indicated that under that protocol, at the beginning of an interview the agents introduced themselves and told the victim’s advocate that they were to “just sit there”, and they were not to interfere
In its final argument, the agency contended that the incident with the app ellant was “so irrational” that Harris felt compelled to make a memorandum for the record. AF 0604, Vol. 9, Tab 13 at 10. Neither Harris’ memorandum nor her response during the CDI support the agency’s argument. See Harris’ memorandum, AF-0604, Vol. 7, Tab 6, subtab 4f at 820.
14 or interject questions. Id. at 208-09. Adcock related that during one interview the appellant attended, she was disrespectful because she said, “Well, wait a minute now,” and although he could not recall the specific wor ds, he felt the appellant was disrespectful by interjecting. Id. at 209-211. Adcock related that between 2006 and 2009, he had never seen any problems with the appellant and the problems seemed to “come out of no where,” after that time. During his CDI interview, Adcock stated that it appeared there was some kind of “power struggle” going on between the leadership and the appellant. AF-0604, Vol. 5, Tab 6, subtab 4f at 213-214. Although OSI Agent Hall did not participate in “B’s” interview and he had no personal knowledge of the interaction between the agents and “B”, he nevertheless provided a statement for the record. subtab 4f at 126-27. AF-0604, Vol. 4, Tab 6,
In his written statement and his comments to the CDI
investigator, Hall repeated his understanding of the incident based on the report he received from Harris. Hall was a witness, however, to the interaction between the appellant and Harris in the OSI lobby. He reported that he walked out of the office and saw the appellant and Harris standing in the waiting area. He indicated that the appellant appeared “upset and frustrated.” Id. He said that he asked
whether everything was okay and Harris replied that she was handling it. Id. He said that later, Harris informed him that the appellant was upset that the agents had taken “B” back out to the scene and that if she had known that was what they were going to do, she would not have allowed it. Id. at 136. The appellant reported that she had been having problems with the OSI in the aftermath of the Defense Task Force 12 visit and since the arrival of Habel. AF-0604, Vol. 7, Tab 6, subtab 4f at 709. She explained that Habel viewed
The record reflects that the Defense Task Force on Sexual Assault in the Military Services conducted a site visit at Sheppard in December 2008. AF -0200, Tab 35 at 8. The appellant did not explain why the visit would have creat ed problems with the OSI.
15 himself as the go-between with all law enforcement and that was a change from the previous structure. Id. at 711. The appellant reported, however, that she
believed she had a fairly professional relationship with the OSI Special Agents. AF-0604, Vol. 7, Tab 6, subtab 4f at 720. She reported that the OSI agents had been trained how to work with victims and there were only a few times when she took exception with the way the agents worked. AF-0604, Vol. 7, Tab 6, subtab 4f at 724. With regard to particular cases, the appellant related that she disagreed with the way the OSI handled the case of “B.” AF-0604, Vol. 7, Tab 6, subtab 4f at 729-30. The appellant explained that “B” had been admitted to a psychiatric hospital because of suicidal gestures in response to a rape , and she remained hospitalized for approximately three weeks. Id. at 730. The appellant reported that the OSI chose to interview “B” on the day she was released from the hospital. Id. The appellant indicated that a victim advocate accompanied “B” to the interview and, after the interview, the OSI agents took “B” to the place where the sexual assault occurred. Id. The appellant explained that she thought the site visit was inappropriate because “B” had not had any opportunity to consult with a mental health counselor on base to insure the availability of follow-up counseling if problems developed. Id. The appellant related that following the site visit, she and the victim advocate had to take “B” to the mental health office because of her emotional state and their concern that she was again suicidal. Id. The appellant confirmed that she went to the OSI office and told Harris that she disagreed with the way the agents handled “B.” AF-0604, Vol. 7, Tab 6, subtab 4f at 731. She said that when approached about taking “B” to the site, Harris replied that they asked “B” if she would go. The appellant observed that the agents may have asked “B” about going to the scene, but they were asking an airman who had just been released from a mental health facility and who had not finished basic training. Id. The appellant stated that, in her opinion, the airman
16 was scared and intimidated by the agents. Id. The appellant indicated that she spoke forcefully to Harris, but she did not recall yelling at her. Id. The appellant said that, two months later, Habel told her that he did not like her speaking to Harris and she did not have a right to “dress down” his agents. Id. The appellant indicated that she told Habel that, in her perception, she was not dressing down the agent, she was pointing out a problem. Id. The appellant said that she did not think the OSI agents realized that they could be intimidating. Id. She explained that when an OSI agent asked an airman to do something, often the airman acquiesced simply because the OSI agent was a federal officer and there was a fear factor involved. Id. She observed that often law enforcement personnel are intimidating to a person who has been victimized by sexual assault because it is a new and scary process. Id. at 743. Natalie Hay reported that she is a Secretary in the 982 nd Maintenance Squadron. AF-0604, Vol. 5, Tab 6, subtab 4f at 221. She stated that she was a victim advocate for the SARC office at Sheppard from March 2008 , until she resigned in February 2009. Id. at 222, 224-25. She related that prior to her
resignation, she had weekly contact with the appellant with updates on the victims assigned to her. Id. at 222-23. She stated that she had not witnessed any “inappropriate incidents” with the appellant. Id. at 227. Hay reported that she was the victim advocate for Airman “B.” AF -0604, Vol. 5, Tab 6, subtab 4f at 229. She stated that she picked “B” up from the hospital and assisted her in processing back on base. Id. at 230. She said that Harris and a male OSI agent wanted to interview “B” concerning details of what happened and they wanted to take “B” to the location where the alleged rape occurred. Id. Hay reported that “B” had a “really hard time” with the request. Id. During the interview, the CDI investigator stated to Hay that the agents had not made “B” go to the scene. Hay disagreed and stated, “No. They made her go directly to where it happened. They made her.” Id. at 230-31. Hay said that they
17 were at the parade grounds for at least thirty minutes 13 and it was a cold day. Id. at 231. Hay related that it was clear that “B” was distressed but, as a victim advocate, she was not allowed to question the OSI agents, she was required to just sit there with “B.” 14 Id. Hay stated that after the interview, “B” was crying and upset, and she could not understand why the OSI agents had put her through that. Id. According to the specification, the appellant went into the OSI office, without prior notice, while an investigation was ongoing, and confronted two OSI agents in the lobby. The appellant confirmed that she went to the OSI office and that she informed Harris that she believed there was a problem with the way “B” was handled. There is no evidence that Harris was with another agent or that Harris was engaged in an investigation while she was in the lobby or that the appellant was required to give any notice before going to the OSI office. The agency offered no explanation why the appellant’s discussion with Harris constituted conduct unbecoming. As the SARC, the appellant’s concern was focused on the victim, “B.” Although Harris maintained that the agents had not done anything improper or “horrible,” her account of “B” reactions differed significantly from Hay’s account. If the appellant had acted inappropriately
toward Harris, I find it unlikely that Hall would have failed to mention that fact. Instead, in his statement, he related that he observed the appellant talking with Harris and the appellant appeared upset and frustrated. Hall did not mention that the appellant was confrontational, that she raised her voice, or that her demeanor was inappropriate. Harris’ statement reflected that she reported the discussion because she did not want anyone to think that she and Adcock had forced the
Highlighting the different perspectives of the event, OSI Agent Harris claimed that the visit to the scene only took five minutes. AF-0604, Vol. 5, Tab 6, subtab 4f at 158.
Hay’s testimony is consistent with Adcock’s description of the OSI’s new protocol for victim interviews.
18 victim to go to the scene, or that she was not doing her job properly. Harris did not indicate that the appellant raised her voice or acted inappropriately. Given the appellant’s duties as the SARC; the fact that “B” had been suicidal; had just been released from the hospital; and specifically indicated her discomfort with the site visit, I am not persuaded that the appellant’s conduct was inappropriate or that it was unbecoming. The agency’s second specification is not sustained. Specifications three and four are not sustained. In specification three, the agency alleged that in December 2008, the appellant slammed her hands on a table, and in a loud voice, accused Hall and Master Sergeant Brian Charz of failing to notify her office about an alleged sexual assault on Victim “C.” The agency related that the appellant’s deputy, Lieutenant Jacinta Anderson-Lujano (Anderson), had been notified of the assault; therefore the appellant’s accusation constituted conduct unbecoming. AF Vol. 4, Tab 6, subtab 4(e). In specification four, the agency charged that, upon learning that Hall and/or Charz had contacted Anderson about the alleged sexual assault on “C,” and that Anderson had failed to notify her, the appellant grabbed Anderson and pushed her through the door. The agency asserted that such conduct was
unbecoming. AF Vol. 4, Tab 6, subtab 4(e). During the CDI, 15 Hall reported that the OSI responded to an allegation of sexual assault that occurred off base. AF-0604, Vol. 4, Tab 6, subtab 4f at 136. He said that the OSI is required to notify the SARC of such allegations. Id. He said that OSI Agent Jessica Keeney responded to the hospital; she called him with the information; and she told him that she would contact the SARC. Id. at 13615
Hall’s CDI interview was conducted on March 2, 2009. AF -0604, Vol. 4, Tab 6, subtab 4f at 131. There are gaps in the transcription of Hall’s interview. See pages 130-131 and 155. It appears, however, that the rest of Hall’s interview is contained in the agency’s file after the statement of Wendell Pugh. See AF-0604, Vol. 6, Tab 6, subtab 4f at 567-577.
19 37. He said that Keeney called the SARC office and talked with Anderson. Id. at 137. Hall reported that because “C” had been given medication, he was not able to communicate, and the OSI was not able to interview him. Id. Hall related that, later, the appellant called him and asked him to come to her office. Id. He said that as he walked into the office, Master Sergeant Charz was also walking up and, after they sat down, the appellant asked them whether they were aware of the sexual assault on “C.” Id. at 137-38. According to Hall, when they replied that they were aware of the incident, the appellant stood up and in a very loud voice asked why she was not notified. Id. at 138. He said that he immediately stopped her and informed her that Anderson was notified of the sexual assault and that Anderson went to the hospital, but she was unable to interview “C.” Id. Hall indicated that the appellant then stuck her head out of the office and instructed her staff to get Anderson. Id. He said that Anderson walked in the door and that the appellant walked around the corner and grabbed Anderson out of the door. Id. at 139. Hall said he was shocked that the appellant was so angry and about what she did to Anderson. Id. In his written statement prepared on March 4, 2009, Hall reported: As Lt. Anderson entered the conference room, Ms. King grabbed Lt. Anderson’s arm and escorted her out of the conference room. AF-0604, Vol. 4, Tab 6, subtab 4f at 127. Charz gave a different account of the meeting. According to Charz, the appellant sent him an email requesting that he come to her office. AF-0604, Vol. 6, Tab 6, subtab 4f at 496. He said that he went to her office; that Hall was already in the office; and upon his arrival, the appellant began yelling at them because they had failed to advise her of what was going on. Id. She explained to them that she had received a call from “C’s” father about the assault, but she had not been given any information about the situation. Id. Charz related that they informed her that Anderson knew about the assault and had been working the case. Id. He indicated that the appellant left the office and he cou ld hear a very
20 loud conversation with Anderson. Id. He said that there was no one else in the area, and although the conversation was loud, he could not hear what the appellant as saying. Id. at 496. Charz said that the appellant then returned to the office and apologized to him and to Hall. Id. at 497. He said that he told the appellant that, in his opinion, Anderson had been doing very well. Id. He said that the appellant explained that Anderson had been told that she could not take the lead on any case because she was not a Captain, and that everything had to go to the appellant for verification. Id. Charz reported: She [the appellant] was very upset at the broke process. She was very concerned that – not necessarily that her people had dropped the ball or something like that, but that the victim – this happened and now, he’s sitting somewhere and nobody knows what’s going on… AF-0604, Vol. 6, Tab 6, subtab 4f at 497-98. Charz reported that they explained to the appellant that was not the case and she calmed down. Id. at 498. Second Lieutenant Jacinta Anderson-Lujano reported that she was the Deputy SARC and she worked with the appellant for approximately one year. AF-0604, Vol. 5, Tab 6, subtab 4f at 250-52. She said that they had a
professional relationship, although they had some disagreements. Id. at 252-53. For example, Anderson complained that the appellant would not allow Anderson to send case notifications to the Commander; instead, the appellant sent all notifications. Id. at 253-54. Anderson stated that the appellant said that she was the SARC, and she would decide how things would be done in the office. Id. at 254, 256. According to Anderson, during her SARC training at Maxwell Air
Force Base, she was told that there was no difference between the Deputy SARC and the SARC, and the only reason for the difference in titles was that the “Chief SARC” was the person held accountable. Anderson stated that she believed that the office should be a partnership, but the appellant thought that she was the boss. Id. at 257. Anderson admitted, however, that that the appellant was her
supervisor. Id. at 256.
21 Anderson explained that she was trying to help the appellant by taking the call concerning “C.” Id. She said that she went to the hospital and learned from the OSI agents that they had tried to talk with “C,” but he was sedated and he had passed out during their interview. She related that she went in to talk with him but he was “passed out and unresponsive,” so she gave the staff her business card to give to him. She reported said she told the staff to give “C” her card as soon as he woke up and to tell him to call her if he needed her. Id. at 271. Anderson indicated that, over the weekend, she called several times to see if “C” had been given her business card, but every time she called, she was told that he had the card and that he had not make any attempts to use the phone. Id. at 272. Anderson related that the appellant found out about the case when “C’s” parent called to find out why no one was helping him. AF-0604, Vol. 5, Tab 6, subtab 4f at 272. She stated that “C” had refused a SANE exam 16 and she opined that, “if somebody refuses our services, you know, we can’t force them to sign paperwork…. He didn’t want our help whenever I called.” Id. at 273. Anderson offered no explanation for her failure to go back to the hospital to insure that “C” actually had her card and that he was aware of the assistance he could receive from the SARC office. She did not report that she ever, in fact, talked with “C,” and more importantly, she offered no explanation for her failure to inform the appellant of the sexual assault or to report it as required by the agency’s regulations. The record contains Anderson’s handwritten statement made on March 3, 2009, the day she was interviewed for the CDI. AF-0604, Vol. 5, Tab 6,
subtab 4f at 249. In that statement, Anderson indicated that she discussed with the investigator her disagreement with some of the appellant’s office policies, her opinion that the appellant exhibited unprofessional behaviors, and that the appellant failed to treat the OSI with respect.
Notably, in the portion of the
Anderson did not indicate how or when she learned that “C” refused the examination.
22 statement provided by the agency, Anderson does not mention any incident where the appellant grabbed or pushed her. Id. During the CDI interview, Anderson related that when the appellant found out about the incident, she called Hall and Charz because she thought they had failed to notify the SARC office of what happened. AF-0604, Vol. 5, Tab 6,
subtab 4f at 273. Anderson indicated that although she was not present for that meeting, she heard that the appellant asked them why they failed to notify her and Hall replied that he did not have to notify the appellant and that, in any event, Anderson had responded on behalf of the SARC office. Id. at 273-74. Anderson indicated that she was called to the office and when she arrived, Gallego told her to go to the conference room. Id. at 274. When first asked whether the appellant engaged in inappropriate conduc t, Anderson related that the appellant had yelled at her on several occasions, but she did not mention that the appellant grabbed, pushed, or otherwise touched her. It was only after the CDI investigator specifically raised the issue that Anderson seemed to recall the situation. They had the following discussion: Q. Okay. It’s been described to me that on 3 December dealing with the [“C”] case, that there was an incident when Barbara King grabbed your arm and pushed you out the door in the SARC office. Could you tell me about that? A. That was the time when, like I said, that she yelled at me in front of the – like the OSI was present, the first sergeant was present, Captain Gallegos, Lieutenant Carol, and two of our advocates were present when that happened. AF-0604, Vol. 5, Tab 6 at 269-70 (grammar and spelling as in the original). Anderson elaborated: Like I said, she just blocked me from getting into the door of the conference room, you know. Whenever she saw me, I guess, opening it, you know, she stepped into the way of me walking in, you know. And I guess – I don’t know where she put her hands exactly on me, you know, but somewhere on my upper body, you know. She, like, pushed me out of the doorway, you know. She said, “In my office now.” You know, she pushed me. Her door is
23 right across the hall from the conference room door , so it wasn’t that far to, you, to like, to push me. So when she pushed me, I was right there at the door, you know. And she, you know, she had her hand on my shoulder. You know, like she tried to open her door while she was holding me. And her door was locked at the time, so she said, you – I think she said a cuss word. She said like, “damn it,” you know because her door was locked. She couldn’t’ get in. She turned around to, I guess to go to the front to get her keys or something. And I said, you know, “I have a key right here, Barbara.” AF-0604, Vol. 5, Tab 6, subtab 4f at 274-75. Anderson stated that the appellant wanted to know why she was not notified of the case, but she refused to listen to Anderson’s explanation. Id. at 276. Anderson stated that the appellant instructed her to get a case log and to make notes concerning everything that had happened. Id. The agency submitted a May 5, 2010 affidavit from Anderson concerning the incident. In her affidavit, Anderson reported: Also, on or about 4 Dec 2009 17 I was attending a base sponsored charity event, where I had a leadership role, and I received a call stating Ms King wanted me back at the SAPR office immediately. I arrived at the SAPR office and was told that Ms King was in the conference room. I walked to the conference room door, knock ed, and began to open the door. Before I could open the door Ms King aggressively pulled the door open from the other side and grabbed me tightly by my bicep area. Ms King shoved me across the hall and toward her office door while holding my arm tightly. As she grabbed me I could see that inside the conference room were an OSI agent and a First Sergeant. Also, there were two other office staff members and a victim advocate in the office at the time. Agency Ex. 5, AF-0200, Vol. 13, Tab 37 (punctuation as in the original). Jaimie Gallego, a Captain in the reserves, reported that she worked in the SARC office during the time frame at issue in this appeal. Further, she indicated
The agency alleged that the incident occurred in December 2008 and the CDI interviews were conducted in March 2009. Thus, the date in Anderson’s affidavit appears to be a typographical error.
24 that she also worked in the SARC office in the past, from December 2005 to February 2007. AF-0604, vol. 5, Tab 5, subtab 4f at 303-06. Gallego related that she had a good working relationship with the appellant, noting that the appellant was passionate about her job. Id. at 307. She stated that she only had a couple of issues with the appellant – one was that, sometimes, when she and Anderson tried to give the appellant a military perspective, it seemed that the appellant did not listen. Id. at 308. The second issue was that the appellant required that
everything go through her. Id. at 309. Gallego reported that in December, Anderson had received a call concerning an unrestricted 18 case and she went to the hospital. AF-0604, Vol. 5, Tab 6, subtab 4f at 333-34. She indicated that the Airman, “C,” was sedated and incoherent so he did not sign any paperwork. Id. Gallego related that Anderson failed to inform the appellant of the situation and the appellant only learned of the alleged assault when she received a call from “C’s” father. Id. at 334-35. Gallego reported that the appellant asked her to call Anderson and get her into the office. Id. Gallego said that when Anderson arrived, the appellant called
Anderson into the office and started screaming at her. Id. Gallego stated that she thought the appellant’s conduct was unprofessional, especially since Hall and Charz were still in the office. Id. Gallego said that the appellant was not cursing but she was “talking down” to Anderson. Id. The appellant admitted that she yelled at Anderson concerning Anderson’s failure to notify the appellant of the sexual assault of “C.” AF-0604, Vol.7,
Under the agency’s regulations, there are two kinds of reportin g for sexual assaults: restricted and unrestricted. Restricted reporting enabled military members to report allegations of sexual assault to specified persons, without triggering an investigation. AF -0604, vol. 3, Tab 6, subtab 4d at 134. The restricted option is intended to remove barriers to medical care and support while giving the victim additional time and increased control of the release and management of personal information. Id. Unrestricted reporting is any report of sexual assault made throu gh normal reporting channels including the victim’s chain of command, law enforcement, and the AFOSI or other criminal investigative service. Id. at 138.
25 Tab 6, subtab 4f at 744. The appellant said that she first heard about the situation when “C’s” father called to see what was being done to help his son. Id. The appellant said that she thought there was a breakdown in the system and that “C” had not been provided any services. She said that she learned that Anderson failed to report that she had responded to the call and failed to comply with the requirement to advise the Commander within 24 hours of a sexual assault. 19 Id. at 745. The appellant explained that she purposely yelled at Anderso n because she wanted her to understand that she had crossed a boundary. Id. The appellant noted that the family had already filed a congressional inquiry and Anderson’s failure meant that the SARC office was not able to provide advice and guidance to the Vice Commander and Wing Commander concerning the allegation of sexual assault. Id. The appellant stated that she did not think that she pushed Anderson through the door. Id. at 758. The appellant said that she was initially upset with Charz and Hall, but when she learned that Anderson had the information, she apologized to them. Id. Anderson reported that she had gone to Captain Eric Belcher, the Military Personnel Flight Commander to express her concerns. AF -0604, Vol. 5, Tab 6, subtab 4f at 257. She said that eventually, things came to a head and she was “done with the whole situation,” so she went to Belcher and requested to be moved out of the SARC office. Id. at 258. She indicated that a position was found for her in another office, but she had only been in the SARC position for a year, and because the SARC assignment was a two-year assignment, she was not allowed to move. Id. Anderson informed the CDI investigator that there was “a lot of legal stuff going on between the appellant and the administrative assistant,
Air Force Instruction 36-6001, Chapter 126.96.36.199.3 provides that within 24 hours of a report of a sexual assault, the SARC will provide the Wing Commander or Vice Commander with non-identifying personal information of a restricted report, and a more thorough summary of any unrestricted report. AF-0602, Vol. 7, Tab 6, subtab 4i at 11.
26 Stephanie Armel 20 and that it was causing the Base a lot of heartache with outside agencies like the Office of Special Counsel. AF-0604, Vol. 5, Tab 6, subtab 4f at 290. Anderson reported that she told Belcher that she wanted to be moved and if she was not moved, she would tell somebody about what was going on. at 290-91. Captain Eric Belcher reported that Anderson informed him of issues she was having with the appellant. He indicated the issues appeared to be a Id.
personality conflict and their relationship was strained. AF -0604, Vol. 5, Tab 6, subtab 4f at 372-73. He said he advised Anderson to try to work out the issues with the appellant. Id. He confirmed that they tried to move Anderson, but either the AETC 21 or AFCP guidance required that Deputy SARCs remain in position for two years and Anderson was not allowed to change her assignment. at 373-74. Id.
Belcher stated that he never witnessed any unprofessional or
inappropriate incidents between the appellant and any o ther person on base. Id. at 375. During his CDI interview, Lieutenant Colonel Randell Smith, Deputy Mission Support Commander, reported that he had little interaction with the appellant. AF-0604, Vol. 6, Tab 4f at 657. He stated that although she appeared to be good at her job, he did not have a “positive outlook” about her because of a situation that arose in 2008. Id. at 658. He related that the agency intended to
Armel was the administrative assistant in the SARC office. According to Norsworthy, although Armel’s duties were clerical, she was acting outside those duties, counseling SARC clients. AF-0604, Vol. 4, Tab 6, subtab 4e at 61-62. Norsworthy indicated that Armel was assigned out of the SARC office. Id. Armel filed a complaint with the OSC claiming that the appellant: (1) left files unsecured; (2) sent an e-mail with an attachment which did not contain the proper Privacy Act heading; and (3) incorrectly claimed compensatory time. AF-0200, Vol. 8, Tab 28 at 15. The agency found that the appellant had sent the e-mail without the proper Privacy Act heading and retrained her in the proper procedures. Id.
AETC refers to the agency’s Air Education and Training Command.
27 rotate Anderson out of the Deputy SARC position and that “everybody and their brother” had coordinated on the move, but the appellant “threw a wrench in the works.” He explained that the appellant pulled an old policy letter that stated the Deputy SARC needed to be in the position for two years. Id. at 658-60. Smith indicated that the local command viewed the letter as “overcome by events”; that new guidance existed; and they were going to go forward with the reassignment. Id. He said that the next thing that happened, and what “soured” him against the appellant, was that she “jumped the chain of command;” went to pretty high levels at headquarters AETC; and got Anderson’s move stopped. Id. Smith reported that he “did not respect the [appellant’s] move” and he did not understand why she was not disciplined for jumping the chain of comma nd. Id. at 660. The appellant confirmed that Anderson was going to be reassigned, but the general 22 intervened in order for Anderson to stay in the SARC office. AF-0604, Vol. 7, Tab 6, subtab 4f at 701. The appellant explained that Air Force
Instruction (AFI) 30-6001 required that a Captain be the Deputy SARC, but Sheppard had traditionally assigned lieutenants to that position. Id. at 701-02. The appellant noted that it was frustrating for Anderson because although she was well qualified, her rank precluded her from having full authority. Id. at 702. The appellant, Hall, and Charz all provided consistent accounts of their discussion concerning the alleged assault of “C.” It is undisputed that the
appellant raised her voice to Hall and Charz. I find, however, that although such conduct might not have been the best course of action, given the appellant’s legitimate concerns about the victim, the reporting requirements imposed under the rules applicable to the SARC, and her apology to both Hall and Charz, the agency failed to show that her conduct was unbecoming.
The appellant did not indicate whether it was General Mannon or some other general who intervened.
28 The witnesses’ accounts vary with regard to the interaction between the appellant and Anderson. Hall reported that Anderson was walking in the door and, as the door opened, the appellant “walked around to the corner;” and grabbed Anderson “out of the door.” In his written statement provided on
March 4, 2009, Hall reported that as Anderson entered the conference room, the appellant grabbed her arm and “escorted” her out of the conference room. AF0604, Vol. 4, Tab 6, subtab 4f at 127. Charz reported that the appellant left the office and he could then hear her loud conversation with Anderson. Anderson indicated that she could see both Hall and Charz as she entered the office. If the appellant had grabbed Anderson as claimed by Hall, I find it unlikely that Charz would have failed to mention it during his interview. Further, as a law
enforcement officer and a military member, I find it unlikely that Hall, who claimed he was shocked by the appellant’s anger, would have idly sat by while the appellant grabbed and pushed a uniformed member of her staff. At the very least, it would seem that he would have made an attempt to calm the situation, or would have commented concerning the inappropriateness of such conduct . Anderson’s versions of the events were not consistent. She did not
mention any contact in her written statement and even after the leading question from the investigator, Anderson’s recollection was vague, only eventually saying that the appellant pushed her and that the appellant had her hand on Anderson’s shoulder. Further, later Anderson changed her version of events to aver that the appellant grabbed her “tightly” by her bicep and “shoved” her. Based on her admitted disagreements with the appellant, her stated belief that she should have more authority than the appellant allowed, the appellant’s interference in Anderson’s move from the SARC office, and the variations in her statements
29 contained in the record, there is a question concerning Anderson’s bias with regard to the appellant. 23 Upon consideration of the statements of all the witnesses, I find that the agency failed to prove by preponderant evidence that the appellant grabbed and pushed Anderson. I find that the factual discrepancies among the observations and statements of the individuals who had the opportunity to observe the interaction between the appellant and Anderson, the failure of Anderson to even mention the incident until pressed by the investigator, the vagueness of Anderson’s own report during the CDI interview, the discrepancies between the interview testimony and her later affidavit, and the appellant’s denial that she grabbed Anderson, weigh against a finding that the appellant engaged in the conduct set out in specification four. Upon consideration of the evidence,
specifications three and four are not sustained. Specification five is not sustained. In specification five, the agency alleged: On or about 29 February 2009, during the course of an OSl investigation, in which OSl Agents Keeney and Harris and the SARC office were interviewing an alleged rape victim (last name “D”), you approached the victim and said, “Isn't OSI intimidating?” “We work with them and they intimidate us,” and “see, look at their badges,” which conduct was unbecoming. AF Vol. 4, Tab 6, subtab 4(e). Harris stated that on one occasion, she and OSI Agent Jessica Keeney were conducting a victim interview at the SARC office, and they took a break when the victim, “D,” had to leave to pick up her vehicle. AF-0604, Vol. 5, Tab 6,
subtab 4f at 172-73. She said that while they were on the break, the appellant
A witness’ bias is a factor to consider when determining the credibility of a witness’ testimony. Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 23 (2009); v. Department of the Army, 35 M.S.P.R. 453, 458-62 (1987) (setting out factors to consider in assessing credibility).
30 arrived and offered the agents some food while they were waiting. Id. at 173. Harris reported that when “D” returned, the appellant introduced herself and asked if everything was being taken care of, and “D” replied that she already had an appointment at the hospital. Id. at 174. Harris related that the appellant then commented to “D,” “try not to be intimidated by the agents. They even intimidate us and we know them. They’re probably even wearing their badges right now.” Id. at 174-75. Harris said that the appellant was laughing as she made the comment. Harris indicated that she did not know whether the appellant thought the comment was appropriate, but Harris thought it was unprofessional. Id. at 175. Harris stated that she asked “D” whether she felt they had any issues or problems that morning and “D” replied that there were no problems. Id. Harris reported that the interview continued and “D” was ready to sign a statement, but she declined having a sexual assault kit (SAK) done. AF-0604, Vol. 5, Tab 6, subtab 4f at 175-76. Harris stated that when the appellant learned that “D” did not want a SAK, the appellant asked to speak with “D.” Id. at 17677. According to Harris’ statement, the appellant went into the room to talk with “D”; then she came out a few minutes later and instructed Gallego to cancel the hospital appointment. Harris indicated that the appellant told the agents that “D” had some concerns and that she wanted to speak with the OSI agents’ boss. Id. at 177. Harris reported that “D,” her victim advocate, and the two agents then went to the OSI office and met with Habel. Id. at 178. Harris indicated that she thought that “D” did not like the fact that the sexual assault report was unrestricted. 24 Id. at 178-79. Harris said that that there did not seem to be any issues when “D” signed the paperwork, although “D” was “getting really quiet.” Id. at 179. Harris suggested that maybe “D” was getting tired. Id. Harris
Harris explained that the report was unrestricted because “D’s” First Sergeant had found out about the alleged assault and was required to report it. AF-0604, Vol. 5, Tab 6, subtab 4f at 178-79.
31 reported that, overall, the appellant was very helpful with cases and that “her number one thing is making sure the victim is taken care of .” Harris stated,
however, that she thought the appellant might take things a little too far. Id. at 180. Jessica Keeney, an OSI agent, reported that she had interacted with the appellant as the SARC on several sexual assault cases. AF -0604, Vol. 5, Tab 6, subtab 4f at 188. She said that usually her interactions with the appellant were “pretty good.” Id. at 189. Keeney related: …Ms. King [the appellant] – I don’t really recall how this got brought up, but Ms. King brought up the fact that OSI – “Don’t be intimidated by OSI,” that “we know them, we’re their neighbors,” speaking in regards to Lieutenant Anderson was in there and Captain Gallego was in there also. “We’re their friends,” or neighbors, or whatever, “and they intimidate us too.” AF-0604, Vol. 5, Tab 6, subtab 4f at 190. Keeney related that Harris asked the victim whether she felt intimidated and the victim replied that she was not. Keeney stated that although the appellant’s comment was made in a joking manner, she thought it was inappropriate. Id. at 193. Keeney reported that the appellant had never been rude to her, but she thought the appellant sometimes overstepped what she should be doing with regard to the OSI. Id. at 192. Anderson stated that the appellant had made comments that the SARC clients were intimidated by the OSI agents. AF-06-4, Vol. 5, Tab 6, subtab 4f at 281. Anderson related that she did not find the agents intimidating and
whenever she interacted with them she found them to be open and polite. Id. at 281-82. Anderson suggested that SARC clients were susceptible and expressed her belief that the appellant’s comments might put thoughts in clients’ heads and create distrust of the OSI agents. Id. at 282-83. Anderson also indicated,
however, that the appellant encouraged the clients not to feel intimidated , and she told them that they were in a safe environment. Id. at 283-284.
32 Anderson reported that she felt there was a personal conflict between the appellant and Habel and that they were engaged in a power struggle. AF-0604, Vol.5, Tab 6, subtab 4f at 286, 289. She stated that the appellant felt that the SARC program was most important and in Anderson’s opinion, the appellant overstepped her bounds. Id. at 286. Anderson reported that she considered the OSI to be “way more important” than the SARC office. AF-0604, Vol. 5, Tab 6, subtab 4f at 286-87. When asked whether the appellant believed that the OSI agents were intimidating to her staff or victims, the appellant replied that she found them to be intimidating. AF-0604, Vol.7, Tab 6, subtab 4f at 741, 742-43. She noted that every time she talked with Habel, he made it a point to tell her that he is a Federal agent, and she found such comments to be intimidating. Id. at 742.
When asked whether she had ever made a statement to a victim that the OSI wa s intimidating, the appellant replied that she had told a victim that the OSI can be intimidating, but they are nice; they are part of the process, and she encourage d them to fully cooperate. Id. at 743. The appellant did not deny that she had on one occasion told a victim that the OSI was intimidating but that they were part of the process and that the victim needed to be fully cooperative. She explained why she made such statements and her rationale was reasonable. The appellant was responsible for ens uring that alleged victims of sexual assault were taken seriously and had a safe environment in which to relate their experiences. Although Harris and Keeney may not have liked the comment, they both indicated that the appellant made the comment in a joking or light manner and it does not appear that the comment interfered in any way with the ongoing interview. Thus, I conclude that the comment was offered as tension breaker in a very stressful situation and in apparent effort to alleviate the victim’s possible nervousness or fear. Given the totality of the circumstances described in this specification, I find that the agency established that the
33 appellant made the comment, but the agency failed to establish that the comment constituted conduct unbecoming. Therefore, this specification is not sustained. Specification six is not sustained. The allegations in specification six arose after Natalie Hay, a victim advocate, had a conversation with OSI Agent Jessica Keeney, which led Keeney to believe that the appellant had provided information to Hay concerning the investigation into the death of “E.” According to specification six: On or about 11 February 2009, you interfered with an official investigation by telling one of your Victim Advocates, OS-4 Natalie Hay, that OSI had developed a suspect in the [“E”]--- death investigation and that the suspect was pending arrest. The information was false and was subsequently relayed by Hay to the “E” family, all of which conduct was unbecoming. AF Vol. 4, Tab 6, subtab 4(e). The evidence submitted in support of this The specification consists of the interview testimony of several witnesses.
statements made during the interviews vary in detail and much of the information is second, third, or fourth-hand hearsay. During her CDI interview on March 2, 2009, OSI Agent Jessica Keeney related that the appellant did not have any connection to OSI’s investigation into the death of Airman “E.” 25 AF-0604, Vol. 5, Tab 6, subtab 4f at 195. She
indicated that she and VA Hay played on a softball team and that, at a practice, Hay asked her what was going on in the “E” case. Id. at 195-96. Keeney replied that she did not know, and Hay said that she was wondering because the appellant had asked her whether she had a support system; that Colonel Norsworthy had told the appellant that the OSI had suspects; that arrests were going to be made
The record reflects that Airman “E” was hit by a vehicle while riding his bicycle. Hay found him on the roadside. It appears from the record that “E” was still a live when she found him and that she called 911, but he later died at the hospital. See Norsworthy’s Interview, AF-0604, Vol. 4, Tab 6, subtab 4f at 42.
34 soon; and that Hay should be prepared to testify. 26 Id. at 196. Keeney said that Hay told her that she still talked with “E’s” mother and that Hay had information about “E’s” wife buying a new house. Id. at 196-97. Keeney stated that she asked Hay how she knew about the house, and Hay replied that her boss in the 982 nd Maintenance group told her. Id. at 197-98. Keeney claimed that the Wichita Falls Police and the OSI had told Hay not to have any contact with “E’s” mother but Hay continued to have contact. Id at 198. Keeney said that she suspected that Hay had told “E’s” mother about a possible arrest, but Hay did not tell her that she had contacted the mother. Id. at 200. Keeney indicated that she thought someone from the OSI contacted “E’s” mother and found out that Hay had reported the information about arrests to the mother . Id. at 200-01. Harris reported that she played softball with Hay and she had heard Hay talk about “E.” AF-0604, Vol. 5, Tab 6, subtab 4f at 181. Harris explained that it appeared that because Hay found “E,” she was “pretty attached to the investigation.” Harris said that she knew Hay was talking with the Wichita F alls Police Department and that she had talked with “E’s” mother and kept in touch with her through emails. Id. at 181. Habel reported that his office was involved with the investigation into the death of “E.” AF-0604, Vol. 4, Tab 6, subtab 4f at 104-05. He indicated that he was informed that Hay had spoken with Keeney concerning the “E” case, that she had asked questions about the investigation, and that the appellant told her there were pending arrests and had asked whether Hay was willing to testif y. Id.
at 105. Habel stated that the OSI called Hay into the office and interviewed her and confirmed her conversation with Keeney. Id. at 105-06. Habel reported that
In her written memorandum for the record, dated February 26, 2009, Keeney did not mention anything about Hay having to testify or that there was concern about Hay having a support system. See AF-0604, Vol. 7, Tab 6, subtab 4f at 806. Keeney only provided that information when she was later interviewed during the CDI. AF -0604, Vol. 7, Tab 6, subtab 4f at 195-97.
35 he tried to call Norsworthy, but because he was not available, Habel then called Chief Kenneth Sallinger, 27 the Command Master Sergeant, with the information. Habel indicated that Sallinger stated he would advise Mannon and Norsworthy of the information. Id. at 106. According to Habel, Norsworthy returned the call, but Norsworthy did not confirm or deny that he had spoken with the appellant about Hay. Habel related that Norsworthy left him with the impression that he did not discuss arrests or the potential for testimony with the appellant. Id. at 106-07. Habel opined that the appellant’s comments to Hay interfered with the OSI investigation, but he offered no explanation for that opinion . Id. at 107. Habel informed the CDI investigator that he had asked the Wing several times to help him with the appellant, and that Chief Sallinger h ad provided help. 28 AF-0604, Vol. 4, Tab 6, subtab 4f at 118-19. Habel did not elaborate concerning what Sallinger had done to help. Habel related that when the issue of appellant’s discussion with Hay concerning the “E” investigation came up, he immedia tely notified the command because it was not the appellant’s responsibility to ask Hay whether she was willing to testify. Id. Anderson said that she assumed the appellant had a friendship with Hay because the appellant had been to Hay’s home “at least once.” AF-0604, Vol. 5, Tab 6, subtab 4f at 263. Anderson related that she overheard conversations
between Hay and the appellant; that she never heard them mention a name, but she knew that Hay was involved in “the biker incident;” and that the appellant had been talking about the matter going to trial. According to Anderson, the
appellant indicated that Norsworthy told her the matter was going to trial soon, and Hay had stopped taking cases because she was going to have “to testify and go to court and all that kind of stuff.” Id. at 296. Anderson related that the day
Habel reported that he had known Sallinger, a former OSI agent, for approximately fifteen years. AF-0604, Vol. 4, Tab 6, subtab 4f at 110.
Habel did not elaborate on what kind of help Sallinger provided.
36 the appellant was relieved of duty, the appellant commented that she guessed Norsworthy did not remember telling her that “E’s” case was going to trial. Id. at 298. Anderson stated that Gallego knew Hay on a personal level; that Gallego said that Hay was really worried about the family; and that Hay had said, “They needed – that nobody has told them, you know, yet that the case is going to trial and that, you know, they need to be notified, you know, because, you know, they need to be prepared for that.” Id. at 298. Norsworthy related that he did not recall whether he told the appellant that “E’s” case was still open and being investigated as a homicide. AF -0604, Vol. 4, Tab 6, subtab 4f at 33. Further, he indicated that he did not recall telling the appellant that Hay might be called as a witness. Id at 34, 58. He confirmed, however, that he asked the appellant to “keep an eye” on Hay . Id. at 48-49. He explained that he was aware of how emotional Hay was during “E’s” memorial service and chapel reception. Id. at 33. Norsworthy indicated that he was
concerned about Hay because she had found the dying airman and he wanted to make sure that she was not getting overwhelmed. Id. at 53. Norsworthy indicated that he saw Hay talking with “E’s” parents at the memorial service, but he did not know whether Hay had any continued contact with the parents. Id. at 33. Later during his CDI statement, however, Norsworthy commented that he knew that Hay was struggling and that she had contact with “E’s” family. Id. at 41-42, 48-49. The appellant related that the only connection she had with the investigation into the death of “E”, was through Hay, a SARC victim advocate. Id. at 780. She indicated that she was concerned about the resources available to provide emotional support to Hay after her experience discovering “E.” Id.
Further, the appellant reported that, at a later date, Norsworthy requested that she keep an eye on Hay. The appellant stated: …he [Norsworthy] was concerned that when a perpetrator was identified, and he did not tell me anything other than they thought
37 they might be close to it or something, that he was concerned about her emotional state, because I think it was obvious that she’d have to testify because she found his body. AF-0604, Vol. 7, Tab 6, subtab 4f at 781. The appellant reported that she talked with Hay and she informed her staff that if the y noticed her spending more time with Hay, it was because Norsworthy asked her to keep any eye on Hay. Id. The appellant reported that Hay told her that she had found something on the side of the road and that she had given the objects to the OSI and she knew that Hay had talked with the OSI. She stated, however, that the incident occurred off base and she thought the Wichita Falls Police Department was doing the investigation into “E’s” death. AF-0604, Vol. 7, Tab 6, subtab 4f at 785-86, 795. She informed the CDI investigator that she was not aware that there was any ongoing OSI investigation. Id. at 786 and 797. Further, the appellant stated that she was not aware that Hay had contacted “E’s” mother. Id. at 794. The
appellant indicated that she knew Hay had met with the family in the emergency room, but she did not know about Hay’s continued contact with the family. Id. Gallego reported that Hay was very affected by the discovery of “E.” AF0604, Vol. 5, Tab 6, subtab 4f at 326. Gallego said that she was aware that Hay had contact with “E’s” mother. AF-0604, Vol. 5, Tab 6, subtab 4f at 356. Gallego denied that Hay ever told her that “E’s” family needed to be notified to be prepared for the matter going to trial. Id. at 356-57. Gallego indicated that she heard about a trial from the appellant who said that Norsw orthy had spoken to her and asked her to keep an eye on Hay, that there was a possibility the matter might go to trial. Id. at 357. Gallego said that she asked the appellant if she knew when the trial would be, and the appellant said she did not know. Id.
at 358. Gallego reported that she thought the Wichita Falls Police Department was investigating the matter and she was not aware that there was an OSI investigation into “E’s” death, until Hay came in to turn in her resignation as a victim advocate. Id. at 361.
38 Hay reported that she found the body of Airman “E” along the side of the road. AF-0604, Vol. 5, Tab 6, subtab 4f at 235. She said that she met “E’s” mother the weekend he passed away, and although they did not have a relationship, occasionally, “E’s” mother called and asked questions about Hay finding her son. 29 Id. at 235-36. Hay stated that “E’s” mother had also called her to request copies of the paper reporting the moment of silence observed in “E’s” memory. Id. at 236. Hay reported that she and her husband put a cross up where “E” was found and she took a picture of the cross and sent it to “E’s” mother. Id. Hay related that she played on a softball team with Keeney and after practice one day, she asked Keeney whether she had heard a nything about what was going on with “E”. AF-0602, Vol. 5, Tab 6, subtab 4f at 237-38 According to Hay, Keeney said that she had not heard anything and Keeney inquired whether Hay had heard anything. Id. at 239. Hay related that she told Keeney that she had called the appellant to update her on a victim, and the appellant told her that Norsworthy had expressed some concern that Hay had a good support group because she would be called in to testify. Id. Hay stated that the appellant did not bring anything up about pending arrests. Hay related that she asked the
appellant about the difference between vehicular manslaughter and murder, and the appellant explained the difference. Id. at 240. Hay said that she became
upset and their conversation ceased. Id. Hay confirmed that during the same time period, Norsworthy asked her how she was doing. She indicated that she thought he was just looking out for her well-being. Id. at 241-42. Hay stated that she called “E’s” mother and told her that she had gotte n a little bit of information – that if and when the matter went to court, Hay might have to testify. Id. at 242. She said that “E’s” mother asked if she had any other information and Hay replied that was all she had. Id. Hay stated that she did not
Hay indicated that the contacts average once or twice a month. AF-0604, Tab 6, subtab 4f at 236.
39 believe anyone had interfered with the investigation into “E’s” death and she did not appreciate the way she was treated by the OSI. Id. at 244. She reported that she felt “manhandled” and “harassed” by the OSI. Id. at 245. Hay explained that she resigned as a victim advocate because she felt that she was being put in the middle of a dispute between the OSI and the SARC office, and that victims were being revictimized. Id. at 244-45. The statements of the witnesses interviewed by the CDI investigator v ary in detail. Upon review of those statements, I find that the appellant and Hays’ statements are the most credible and probative. Essentially, the facts proven under this charge are that the appellant informed Hay that, if the “E” case went to trial, she might have to testify. Both the appellant and Hay denied that the Further, Anderson and Gallego both
appellant said anything about arrests.
reported that the appellant commented that the matter might go to trial, but neither indicated that the appellant mentioned any other details. Norsworthy
confirmed that he asked the appellant to look after Hay. It is undispu ted that Hay was greatly affected by the experience of finding “E.” That Norsworthy and the appellant were concerned about her welfare is not surprising or inappropriate. Further, it is logical that if the matter ever went to trial, Hay, as the first person on the scene, might have to testify. Such information would not have been secret or confidential. Habel and Hall had no direct knowledge of the conversation
between the appellant and Hay or between Hay and Keeney. They based their conclusions on second, third, and fourth-hand hearsay. 30 I note that Habel was the OSI Agent in charge at Sheppard and he made repeated statements concerning
I note that Habel and Hall claimed that Hay confirmed their version of the events, but Hay’s CDI statement contradicts their claims. A review of Keeney’s statement is not consistent with the facts set out by Habel. The record contains a summary of events which reflects that Hay made a written statement, but the agency failed to provide a copy of the statement. See AF-0604, Vol. 4, Tab 6, subtab 4f at 809. The summary is not signed and does not reflect who the author was. Id.
40 his status as a Federal law enforcement officer. Further, he reported that the investigation into “E’s” death was of the highest priority and sensitivity. Given his allegation that the appellant engaged in conduct that interfered with that investigation, it is surprising that Habel did not advise the Wichita Falls Police Department of the matter or take more affirmative action to deal with his concerns. Instead of addressing the matter directly with the appellant through legal channels, he went to Sallinger, the assistant to Mannon, and complained. If, as the agency asserted, the appellant’s alleged conduct was so serious or posed a threat to the ongoing investigation, it is puzzling that the agency chose to address its concerns through a CDI conducted by a civilian employee, who was not a law enforcement officer, and who took more than a month to complete the investigation. I find that the agency failed to establish that the appellant’s
comments to Hay were false or that those comments interfered in any way with an official investigation. Specification six is not sustained. The agency failed to prove specification seven. In specification seven, the agency charged: Between on or about 1 February 2009 and 15 February 2009, you improperly delayed OSI’s access to the SARC file on Victim “B” even after OSI Showed you language in AFI 36-6001, Sexual Assault Prevention and Response Program , paragraph 188.8.131.52.3., authorizing their access, which conduct was unbecoming. AF Vol. 4, Tab 6, subtab 4(e). 31 Air Force Instruction 36-6001, paragraph 184.108.40.206.3. provides: Unrestricted reports will only be available to appropriate individuals with an official need to know. Those who have an official need to know in the Air Force routinely include law enforcement, the commanders and first sergeants of the victim and the alleged assailant, legal personnel, the SARC, the VA and Healthcare Personnel as required to perform their respective duties.
The CDI investigator, Hillard, found that this allegation was not substantiated. AF 0604, Vol. 4, Tab 6, subtab 4f at 23.
41 AF-0604, Vol. 7, Tab 6, subtab 4i at 18. Habel reported that he mentioned to the appellant that the OSI was going to start reviewing the SARC records. AF-0604, Vol. 4, Tab 6, subtab 4f at 112. He said that approximately two weeks after that discussion, when one of his agents tried to review some SARC records, the appellant refused to provide them. Id. He indicated that the appellant wanted to coordinate with the AETC and Wing to insure that the records could be released to the OSI. Id. at 113. Habel related that he spoke with Norsworthy about it and Norsworthy also wanted additional guidance. Id. Habel commented that if it had been a critical matter, “I would have gotten the records…” He indicated, however, that he “let” the SARC Office seek coordination with AETC. Id. Habel acknowledged that the appellant
provided the records the day after the completion of the coordination. Id. Habel stated that the appellant’s conduct with regard to the records was an example of her not allowing the OSI agents to do their jobs. Id. OSI Agent Hall reported that Habel had talked with the appellant and told her that the OSI was going to review all unrestricted SARC files to make sure that there were no other logical leads to follow up. AF-0604, Vol. 4, Tab 6,
subtab 4f at 139-40. He indicated that, in reply, the appellant told Habel that the OSI did not have access to such records. Id. Hall stated that, a few months later, on a Friday morning, he told Adcock to call the appellant to let her know that he wanted to set up a review of the SARC records on victim “B’s” case file. Id. at 141. The appellant responded that she was going to have to do a little research first and bring it up her chain of command. Id. He said that on the following Monday, he and Adcock took a copy of the SARC regulation 36-6001 to show to the appellant and told the appellant that the regulation authorized them to review the SARC files. Id. at 141-42. Hall related that she wrote down the regulation section and told them that she had a meeting with Norsworthy. Id. at 142. Hall said eventually the OSI got access to the files. Id. at 144. In a written statement contained in the record, Hall acknowledged that the appellant believed that the
42 regulatory reference was ambiguous and she wanted clear guidance from her superiors. AF-0604, Vol. 4, Tab 6, subtab 4f at 128. According to an email authored by Habel, AFOSIMAN 71-122, paragraph 220.127.116.11 provides: that when a victim elects to change a restricted report to an unrestricted report, the need for protecting covered communications ceases, and the SARC, VA, and involved health care providers may disclose to investigators any information provided by the victim. at 821. Anderson reported that the OSI had a new policy which required them to review the SARC case files before closing a case. 32 AF-0604, Vol. 5, Tab 6, subtab 4f at 287. She indicated that when the OSI asked for the files, the AF-0604, Vol. 7, Tab 6, subtab 4f
appellant replied that there was no information in the case file that would help with the investigation. Anderson said the told the appellant, “Well, if it’s not going to help them, why not let them so [sic] it? If there’s nothing that they can use, then there shouldn’t be a problem.” Id. Anderson expressed her opinion that it seemed the SARC office was trying to hide evidence. Id. Gallego reported that the appellant informed her that the OSI wanted to see case files and Gallego noted that, in the past, that was never done. AF -0604, Vol. 5, Tab 6, subtab 4f at 312. Gallego stated that the appellant told the OSI that she wanted to run it up the chain of command to make sure it was okay. Id. Gallego explained that the appellant wanted a review because she was concerned about victims’ privacy. Id. at 312. Further, the appellant wanted time to update the case file. Id. at 314. According to Gallego, the command told the appellant that, if she did not turn over the case file, the OSI would arrest her. Id. at 313. Norsworthy reported that Habel had complained about the appellant. AF0604, Vol. 4, Tab 6, subtab 4f at 46. He related that a recent incident involved
Anderson did not identify the policy or regulation number and the agency did not provide a copy of any policy or regulation that set out that requirement.
43 the OSI’s request for access to the SARC records and that request was worked out. Id. at 46-47. The CDI investigator requested background information on the appellant from the AETC SARC, Christine Burnet. AF-0604, Vol. 7, Tab 6, subtab 4f at 853. Burnet reported that she had worked with the appellant for more than a decade and had assisted the appellant when she moved into the Sheppard SARC position in 2007. Id. Burnet related that around December 2008, the appellant began requesting input with regard to issues with the OSI and she noted that prior to that date there were no recurring questions concerning the interaction with the OSI. Id. at 854. Burnet reported that many of the questions were new issues and she had to seek additional advice from the OSI regional authority. Id. She
identified some of the issues which included: questions about the SARC or victim advocate’s presence in the OSI interview room; the role of the victim advocate or SARC during the interview; OSI requests for review of case files, how such requests were to be made, and what limitations applied; a determination of who should have fist access to victims; OSI’s role during SARC case management team meetings; and OSI’s presence at the Emergency Room duri ng forensics exams, and interview procedures at that location. Id. Burnet reported: It must be noted that with the new Air Force policy and the AFI on sexual assault prevention and response, every major player in this process has been required to make adjustments and change the way things had been done in the past. That is precisely the point of the program – the old way did not serve the Air Force well, whether that was measured by reports of victims, the strength and readiness of the force, or the opinion of the Air Force held by members of Congress or the American public. Particularly in AETC and at Sheppard, where there was a significant visibility and substantial negative publicity, Commanders, First Sergeants, medical and legal personnel, OSI and security forces investigators, equal opportunity staff and even chaplains have all had to re-work their mindset and procedures in response to the charge given to SARCs in their new role for the Air Force. For some the adjustment has come more easily than i t has for others.
44 SARCs are charged, both in AFI 36-6001 and at their Air University qualification course to be “the installation’s single point of contact for integrating and coordinating sexual assault victim care services.” It is the SARC’s responsibility to “ensure victims of sexual assault receive the appropriate responsive care.” There is no other designated advocate for the victim on an installation. AF-0604, Vol. 7, Tab 6, subtab 4f at 854. Burnet observed that in their role, SARCs became a target for anyone who did not “share the CSAF’s vision of the future where blue-on-blue violence does not exist in our Air Force.” Id. at 854-
55. Burnet reported that in a high visibility, high demand job and despite serious constraint and limited support and resources, the appellant was committed and engaged on behalf of victims at Sheppard. Id. at 855. The appellant reported that her office occasionally had “challenges” with the OSI, but they tried to work through them. Id. She stated that the OSI agents had indicated that they did not like the requirement to have a victim’s advocate in the room during interviews. Id. The appellant reported that she disagreed with Habel when he demanded that on all the restricted cases, the SARC office not talk with victim before the OSI arrived. Id. at 726. The appellant explained that Habel’s demand was a problem because the SARC did not have the opportunity to present the DD Form 2910 33 privately or to talk with the victim with regard to their immediate safety and medical needs. The appellant related that the OSI started requesting copies of SARCs case files, which was a new procedure. AF-0604, Vol.7, Tab 6, subtab 4f at 741. The appellant explained that she objected to providing the SARC case files to the OSI because there were very few levels of privacy for victims and even though there was not a lot of documentation in the case files, she was concerned about
AFI 36-6001 provides that a victim who wants to elect a restricted report must complete a DD Form 2910. AF-0604, Vol. 4 Tab 6, subtab 4f at 833. Further, when a victim refuses to complete the DD Form 2910, the SARC is required to ensure that the victim has the capacity to make the election and to inform the victim that the report will be registered as an unrestricted report and that the OSI will be notified. Id.
45 releasing information without the victim’s consent. Id. at 747. She said that she encouraged victims to provide all the information directly to the OSI. Id. She reported that Norsworthy instructed her not to hand over the files pending clarification from MAJCOM, and eventually, she was told that she had better hand the files over, or the OSI would send a squad car over for her. Id. at 741. She said that the OSI was making comments about “obstruction of justice” and she felt the comments were threatening. Id. at 741-42. The appellant stated that after it was decided the case files would be provided to the OSI, she directed her staff to make sure the files were complete and to provide them to the OSI. Id. at 748. The record contains emails from the appellant to her supervisor, Norsworthy, and the “AETC SARC Functional” requesting clarification
concerning the release of unrestricted SARC Victim Case files; and to her supervisor detailing the steps she was taking in response to his instructions. AF 0604, Vol. 7, Tab 6, subtab 4f at 822-830; AF-0200, Vol. 13, Tab 38 at 5. Guidance reflected that where there was an unrestricted report, the SARC records were not protected and OSI might have the need to review the SARC files (emphasis added). Id. The appellant timely informed Habel that she was seeking additional guidance. AF-0200, Vol. 9, Tab 24 at 18. As all of the witnesses observed, there is and was a tension between the role of law enforcement and the SARC office. The SARC regulations make it clear that the agency believes the privacy of victims is important. Contrary to the agency’s contentions, I find that the SARC regulation was not clear concerning the right of law enforcement to review the internal files of the SARC office. The regulation provides that law enforcement will have access to an unrestricted report; it does not address whether that access extends to the SARC office’s internal case files. The appellant explained her concerns to the OSI, she
coordinated with her superiors, and requested an opinion concerning the propriety of releasing the case files. When she was advised that s he could provide those
46 files, she did so. I find that the agency failed to prove that the appellant
“improperly delayed” the OSI’s access to the SARC file on victim “ B.” Specification seven is not sustained. Specification eight is not sustained. In specification eight, the agency alleged: On divers occasion during the months of December 2008 and January 2009, you gave Victims “C” and “B” rides to their on and off base appointments. On one or more occasions, during the months of January and February 2008, you allowed Victim “F” to pay for your lunch or dinner. Between October 2007 and February 2009, you had victims over to your house and, on at least one occasion, you allowed a victim (“G”) to spend the night, along with two of her male friends, the victim advocate, your daughter and you. You hosted victims in your office after hours to eat dinner and watch movies or during the day to take naps (“B”). You also touch, pat, and hug victims contrary to the training provided to Victim Advocates, all of which conduct was unbecoming. AF Vol. 4, Tab 6, subtab 4(e). Gallego stated that she thought the appellant sometimes babied victims. AF-0604, Vol. 5, Tab 6, subtab 4f at 320-22. Gallego explained that the
appellant needed to realize that the victims were still airmen in the Air Force and that there were lines that she could not cross because there were some Airmen who might take advantage of the situation. Id. During the CDI interview, Charz related that the appellant gave “C” a ride to the mail room. He said that, in his opinion, because “C” was still in training, he should have walked to the mail room. Id. When asked whether the appellant catered to or babied victims, Charz replied that he saw genuine concern not babying. Id. at 498-99. The appellant confirmed that she had driven victims to appointments both on and off base. AF-0604, Vol. 7, Tab 6, subtab 4f at 768. She said that the agency’s regulation required that the SARC office have an official vehicle, but her office did not have one. Id.
47 Although it appears that one or more individuals disapproved of the appellant giving victims rides, the agency failed to establish that the appellant’s conduct was inappropriate or prohibited by any policy or regulation. In the absence of any evidence that the appellant’s conduct was improper, I find that the agency failed to establish that giving rides to victims constituted unbecoming or unacceptable conduct. Tech. Sergeant Jacquilynn Astorga reported that she was a victim advocate for the SARC office from 2005 to March 2008, but she did not have much contact with the appellant until February 2008. . 34 AF-0604, Vol. 5, Tab 6, subtab 4f at 381-83. Astorga related that, during the time she was a victim advocate and the appellant was the SARC, she worked on three cases. Id. 383-84. Astorga stated that, on one occasion, she was having lunch with “F,” and the appellant called to tell him that he had an appointment at the OSI, and she would meet them there. AF-0604, Vol. 5, Tab 6, subtab 4f at 393. Astorga said that the appellant inquired where they were; “F” told her the name of the restaurant and asked whether she wanted him to get some lunch for her; and the appellant replied that it would be great. Id. Astorga said that “they” brought a salad for the appellant but she did not offer to pay for the lunch. She indicated that the day before “F” left the base, she asked him whether the appellant had paid for the lunch and he replied no. Id. Astorga did not indicate why she did not address the issue with the appellant to insure that “F” was paid for the lunch. Astorga also related that on another occasion, she thought that the appellant had gone to Pizza Hut with “F” and his friend and she believed he paid for the dinner. Id. “F” provided a written statement. AF-0604, Vol. 5, Tab 6, subtab 4f
at 425-427. He indicated that the appellant met him, and a friend, at an off-base Pizza Hut, and he paid for dinner with his credit card. Id. at 427.
Astorga reported that she resigned as victim advocate because she was unable to work with the appellant. AF-0604, Vol. 5, Tab 6, subtab 4f at 383.
48 The appellant stated that she had not allowed victims to pay for her meals. AF-0604, Vol. 7, Tab 6, subtab 4f at 765-66. With regard to “F,” the appellant reported that she recalled joining “F” and a friend at Pizza Hut after they had already ordered. AF-0604, Vol. 2, Tab 6, subtab 4d at 10. She related that she had eaten prior to joining them. Id. Further, she stated that she was unaware that “F” had paid for a lunch for her. Id. It would be improper for the appellant to allow a victim to pay for her meals. I find, however, that the agency failed to establish by preponderant evidence that the appellant, in fact, allowed any victim to pay for her meals. “F” did not report that he paid for the appellant’s lunch; he only related that the appellant had joined him and a friend at Pizza Hut. He did not indicate at what point in the meal the appellant joined them, nor did he say that the appellant ate with them. Thus, the appellant’s description of the meeting at Pizza Hut is not contradicted by any evidence of record. Based on the evidence of record, I find that the agency did not prove this element of the specification. Anderson reported that after a court martial, a SARC client was upset, and she stated that she was going to drive home that night after just getting out of court. AF-0604, Vol. 5, Tab 6, subtab 4f at 268. Anderson said that, for safety issues, the appellant did not want the client to drive , so the appellant let the client, the victim advocate, and the client’s friends come to her house. Id. Anderson also reported that at least once, the appell ant let one of Hay’s clients go to Hay’s home to watch a Super Bowl game. Anderson related her belief that such practices were unethical and were prohibited under the agency’s policy. Id. She did not identify the policy she was referencing. The appellant reported that the service the SARC office provided to victims was very personal, and as a general rule, she did not invite victims to her home, nor did she socialize with them. Id. at 766. She related that there was one
49 exception to that rule when she allowed the victim, Airman “G,” 35 her victim advocate, and a couple of “G’s” friends to stay at her home. Id. 769. She explained that “G” was stationed at another base and had returned to Sheppard for the court martial of the perpetrator. The appellant indicated that when the perpetrator was convicted on a lesser charge, “G” became extremely upset and distraught, and was going to drive back to her base in the middle of the night. Id. at 769-70. The appellant stated that she allowed the group to come to her house so “G” would not drive back that night. Id. at 770. She noted that she informed Norsworthy of the situation the next day. 36 Id. at 769 and 777. The agency did not explain why, under the specific circumstance, the appellant’s actions were inappropriate. Upon consideration of the specification and the reports of the various witnesses, I find that the agency failed to establish that the appellant’s conduct allowing the victim to stay at her home under these circumstances violated any agency regulation or constituted conduct unbecoming. Further, I find that the agency did not establish that the appellant “hosted victims in [her] office after hours to eat dinner and watch movies or during the day to take naps.” Moreover, even if the appellant had allowed such activity, the agency did not establish that such conduct was prohibited or was unbecoming or unacceptable. A typed statement signed by Dawn Chapman indicated that she believed the appellant was “touchy” with a victim. AF-0604, Vol. 6, Tab 6, subtab 4f at 438. Chapman reported that the appellant ”was constantly touching and hugging” the victim. Id. Chapman related that she thought the contact made the victim
“G” confirmed that she was distraught after the verdict and she wanted to immediately drive back to her base in Kansas, but the appellant convinced her to remain overnight and allowed her to stay in the appellant’s home. “G” expressed her appreciation for the appellant’s support. AF-0200, Vol. 12, Tab 34.
Norsworthy confirmed that the appellant informed him that “G” spent the night at her home. AF-0604, vol. 4, Tab 6, subtab 4f at 61.
50 uncomfortable. Id. Chapman did not identify the victim or when the events
occurred. Id. The statement reflects that, at the time the statement was made, Chapman was stationed at Langley Air Force Base in Virginia. Id. at 437. The summary of the CDI reflects that Chapman’s statement was taken by telephone. AF-0604, Vol. 4, Tab 6, subtab 4f at 3. The appellant related that it is appropriate to touch, hug, or pat a victim as long as the victim has given permission. AF-0604, Vol. 7, Tab 6, subtab 4f
at 708. She stated that sometimes such contact is comforting to a victim, but in those situations where the victim is not comfortable, the victim’s boundaries must be respected. Id. at 708-09. Although the agency contended that the training provided to victim advocates prohibited touching victims, the evidence contradicts that contention. Victim advocates are informed that they should not touch or hug victims unless they are sure that the victim is comfortable with physical contact. AF -0604,
Vol. 4 Tab 6, subtabs 4d at 323 and Vol. 7, Tab 6, subtab 4l. The agency did not establish that the appellant engaged in any inappropriate touching, patting, or hugging or that the appellant engaged in any unbecoming conduct in this regard. The agency’s eighth specification is not sustained. I have not sustained any of the specifications under the agency’s first charge. Accordingly, I find that the agency first charge is not sustained. Charge II: Dereliction of Duty: In its second charge, the agency alleged that between September 30, 2007 and February 2009, the appellant was derelict in the performance of her duties. The agency asserted that the appellant failed to ensure that alleged rape victims leaving Sheppard Air Force Base received continuity of care from the SARC office at their new base as required by AFI 36-6001, paragraph 18.104.22.168. AF Vol. 4, Tab 6, subtab 4(e). The agency did not identify any victim who was not provided continuity of care during the cited period.
51 The Board has held that fundamental due process requires that a tenured public employee be given oral or written notice of the charges, an explanation of the supporting evidence, and an opportunity to respond. Department of Justice, 106 M.S.P.R. 366, ¶ 9 (2007). See Lamour v.
Such notice must be
sufficiently detailed for the employee to make a meaningful response to the charges. In this appeal, the agency identified a period of approximately two years and claimed that during that time the appellant failed to insure that victims had continuity of care. Absent any allegation relating to specific individuals or cases, the appellant was put in the position of having to guess which victims had not received continuity of care and why the agency was making such allegations. I find that the agency’s broad conclusory allegation was not sufficient to put the appellant on notice of the factual basis for the charge. Accordingly, I find that the agency violated the appellant’s right to due process and this specification cannot be sustained. See Lamour, 106 M.S.P.R. 366, ¶ 10. Charge III: Negligent Performance of Duties: Under the third charge, the agency contended that, as the SARC for Sheppard Air Force Base, the appellant should have ensured that a victim support system existed for any and all persons who reported that they were victims of a sexual assault. The agency asserted that between January 25, 2008 and February 2008, the appellant failed to do so as she improperly served as an advocate for two individuals, “F” and “H”, whose interests were antagonistic to each other. AF-0604, Vol. 4, Tab 6, subtab 4(e). Astorga reported that she believed that the appellant acted more in the capacity of an advocate than the SARC. AF-0604, Vol. 5, Tab 6, subtab 4f at 383-84. Astorga indicated her belief that that the appellant forced victim “ F” into an unrestricted report, even though he was not comfortable with it. Id. at 384. Astorga said that shortly after “F” went unrestricted, the alleged perpetrator made
52 counter-allegations and “F” observed the appellant with the alleged perpetrator in her vehicle “on their way to lunch.” 37 Id. at 384-85. In a written statement, “F” related that the appellant pressured him into making an unrestricted report of a sexual assault and she failed to provide appropriate support for him. AF-0604, Vol. 5, Tab 6, subtab 4f at 425-427. Id. “F” reported that the perpetrator of the sexual assault also made a report to the SARC office; the SARC office provided services to the perpetrator; and he observed the appellant and the perpetrator in the appellant’s car “driving and laughing going off base.” Id. AF-0604, Vol. 5, Tab 6, subtab 4f at 425-427. The appellant confirmed that there was a situation where a male claimed to have been sexually assaulted and the female he accused made counter allegations. The appellant stated that the SARC office handled both ca ses and that she believed the matter was handled professionally and successfully. AF -0604, Vol. 7, Tab 6, subtab 4 at 762-765. The agency failed to submit any evidence showing that the appellant acted as an “advocate” for either “F” or “H.” Further, the agency’s submissions show that Astorga acted as “F’s” victim advocate and he appear ed to have been satisfied with her advocacy on his behalf. See AF-0604, Vol. 5, Tab 6, subtab 4f at 427. “H” reported that she was satisfied with the care and treatment provided by the Sheppard SARC office. Based on the evidence before me, I find that the agency failed to establish by preponderant evidence that, between January 25, 2008 and February 2008, the appellant failed to ensure that a victim support system existed f or “F” and “H.” Although “F” and “H” may have had conflicting interests, the role of the SARC office was to deal with all victims. There was only on SARC office on base and the fact “F” was disappointed or upset about “H’s” claim to be a victim did not
Astorga did not indicate how “F” knew that they were on their way to lunch.
53 mean that “H” was not entitled to the services of the SARC office. Absent any evidence in support of this charge, it is not sustained. Charge IV: Failure to Follow (or disregard of) Instructions: Under charge four, the agency set out two specifications. I n specification one, the agency alleged that: On or about 2 December 2008, you directed Lt Anderson-Lujano to sign out a government vehicle to Victim Advocate, Sgt Eddie, who was not licensed to operate a government vehicle (which license is required by AFI 24-301, paragraphs 8.1. and 8.3, in order to operate a government vehicle), and which fact was known to you. AF Vol. 4, Tab 6, subtab 4(e). Air Force Instruction 24-301, paragraph 8.1 provides: 8.1. Policy Air Force motor vehicles shall only be operated by military civilian employees, approved civilian contractors and NAF employees who meet all criteria of this instruction. AF-0604, vol. 7, Tab 6, subtab 4g at 3. Paragraph 8.3 provides: 8.3. Driver Records: The OR&L staff maintains active records (AF Form 2296, Vehicle Operator Information) for all authorized operators, regardless of motor vehicle type or Gross Vehicle Weight (GVW), assigned to the installation. Operator records are retained in the Computer automated Fleet Information System (CAFIS). Backup files are to be maintained for all system records and should be updated daily. AF-0604, vol. 7, Tab 6, subtab 4g at 4. Anderson claimed that the appellant asked her to do something “illegal” and that the appellant became angry when Anderson refused to do it. Id. at 261. Anderson explained that the appellant asked her to take a victim advocate, Sergeant Eddie, to get a government vehicle. Id. at 261-62. Anderson related that when she asked Eddie whether she had a government license, Eddie replied no. Id. at 262. According to Anderson, the appellant stated that she wanted
Anderson to sign the vehicle out for Eddie, but Anderson refused and informed the appellant that was illegal. Anderson related that the appellant said that she would take full responsibility for it. Anderson said that the appellant insisted that
54 she do as she was told, yelled at her, and said that Anderson was at fault for not making sure that Eddie had a government license. Id. Gallego said that during the Defense Task Force Team visit, the appellant was going to let an airman who was on detail to the SARC office get a car. AF0604, Vol.5, Tab 6, subtab 4f at 323. She reported that the staff explained to her that the airman would get into a lot of trouble, and the appellant asserted that because she is the SARC, she could get special permission for Eddie to use the car. Gallego stated that the staff again told her no, the airman would get in a lot of trouble, and at that point, another staff member, Lieutenant Shayne Carroll said that he would go get the car. Id. The appellant confirmed that she directed a SARC staff member to check out a government vehicle for an individual who did not have a government driver’s license. AF-0604, Vol. 7, Tab 6, subtab 4f at 705. She stated, however, that she imposed conditions on her directive, explaining that Anderson had previously been tasked with ensuring that the victim advocates had obtained their government drivers’ licenses. Id. The appellant reported that Anderson had failed to comply with those directions. 38 Id. The appellant stated that once she was informed of the problem with the driver’s license, Anderson should have immediately advised her of the problem. Id. at 706-07. The appellant related that she contacted the agency’s Protocol Office and was informed that, on occasions, an individual who did not have a government driver’s license was allowed to pick up a vehicle and later have the license processed. Id. at 706. The appellant
stated, however, that after being informed that it was not legal, she directed Anderson or one of the other staff members to pick up the vehicle Id. The agency established that the appellant directed Anderson to take Eddie to get a government vehicle; Anderson informed the appellant that Eddie did not
The appellant related that Anderson lied about following up on the issue of the drivers’ licenses. AF-0604, vol. 4, Tab 6, subtab 4f at 706.
55 have a government driver’s license; and the appellant told Anderson to go ahead even though Eddie did not have the proper license. The agency also established, however, that when informed that she could not authorize Eddie to drive a government vehicle, the appellant instructed another staff member to get the vehicle. The agency failed to show that the appellant failed to follow or
disregarded instructions and this specification is not sustained. The agency’s second specification is not sustained. In specification two, the agency charged that Between on or about December 2008 and January 2009, you authorized Victims “I” and “C” to carry cell phones on their person, while in military uniform, contrary to AETC Instruction 36-2216, paragraph 7,22.4., and 2 AF Policy Letter, 22 December 2006. AF Vol. 4, Tab 6, subtab 4(e). AETC Instruction 36-2216 provides limitations on the use of personal electronic devices. AF-0604, Vol. 7, Tab 6, subtab 4k. During Phase I of
training, such devices may be used inside the dormitory after duty hours. Id. During Phases II and III, such devices may be used after duty hours, but not in uniform. Id. The instruction reflects that Wing Commanders may temporarily exempt students from phase program requirements when conditions are deemed unsafe. Id. Tony Pounds, Commander 782 Training Group, reported that he had a complaint from Lieutenant Colonel Mike Braucher that the appellant had “overstepped her bounds” by giving one of his airmen a cell phone. AF -0604, Vo. 6, Tab 4f at 625. He indicated that he told Braucher that he would talk with the appellant but instead raised the issue with Col. Norsworthy. Id. at 625-26. When asked whether he felt that the appellant ever overstepped the bounds of her authority, Pounds replied, “I have never felt that way.” Id. at 626. Further, he stated that he never witnessed the appellant engage in any unprofessional or inappropriate conduct. Id. at 627.
56 Braucher, Commander of the 365 th Training Squadron, related that he interacted with the appellant in her capacity as the SARC. AF -0604, vo. 6, Tab 4f at 590-91. He complained that the appellant stepped beyond her role as the SARC with regard to a case involving “C,” an airman under his supervision. Id. at 591. Specifically, he indicated that she gave “C” rides to his appointments, and she authorized him to carry his cell phone. Id. Braucher reported that they worked with the appellant to let her know that she could not authorize things that were not allowed in the regulations. Id. He stated that he never witnessed the appellant engaging in unprofessional or inappropriate conduct. Id. at 593. Charz reported that he worked with the appellant on several SARC cases involving either sexual assault or rape. AF-0604, Vol. 6, Tab 6, subtab 4f at 492. He indicated that they had a good working relationship and that she took her role very seriously. Id. at 492-93. Charz stated that on a couple of occasions, he talked with the appellant about “overstepping her bounds” because the victims were airmen first, they were still in training, and they still needed “to be accountable for the same standards as everybody else.” Id. at 493. When asked whether he thought that the appellant ever interfered with the Commander or First Sergeant in disciplinary matters, Charz replied that he felt that she had taken some things on herself. Id. at 494. As an example, he reported that the appellant authorized an airman, “C,” to carry around his cell phone while he was in uniform, which was against the Phase Program policy. Id. He indicated that she insisted that, under the AFI program, she was authorized to make that call, but when he asked her for the AFI and policy letter that gave her such authority, she dropped her insistence. Id. at 494-95. Master Sergeant Jeremy Harmon stated that he had little contact with the appellant, except for a situation involving “C”. He related that the appellant “overstepped her bounds” by authorizing “C” to carry a cell phone when she did not have the authority to do so. AF-0604, Vol. 6, Tab 6, subtab 4f at 479. He explained that “C” was an airman in training and he had to have a letter from the
57 Commander or the Master Sergeant in order to carry a cell phone. Id. Harmon stated that most of the time, the appellant kept him informed of what was going on and that they had a pretty good relationship. Id. at 480. He said that he and Charz confronted the appellant about the cell phone, and the appellant indicated that she thought that she had done nothing wrong. Id. He related that they
explained to her that it was their responsibility and that, if she informed them of the situation, they would make sure that, if necessary, “C” would have his cell phone. Harmon explained that airmen trainees were allowed t o carry cell phones in certain situations, for example if there was a death in the family or they knew a person was ill or sick. Id. Harmon said that other than the cell phone situation, he had never had any other problems working with the appellant. Id. at 483. at 483. Harmon stated that he did not observe the appellant ever interfering with squadron business or responsibilities, or in disciplinary matters. Id. 483-85. The appellant reported that she and “C” discussed his carrying a cell phone in uniform. AF-0604, Vol. 7, Tab 6, subtab 4f at 707. She said that the
commander had an issue with it and that, ultimately, the commander had the authority to prohibit use of the cell phone. Id. She indicated, however, that, in her professional opinion, the cell phone was necessary. Id. She explained that “C” had had a “pretty high level sexual assault,” there was a congressional inquiry on the matter, and often victims needed to contact her directly. Id. at
707-08. She said that she was instructed to go through the detail manager and she stated that, in her opinion, such an arrangement was not an appropriate way to allow a victim to contact a SARC. She stated that a victim should be able to contact the SARC without having to go through someone else and having others know about the call. Id. at 708. She said that it was her role to work with
command leadership; that leadership did not agree with her and it was their call ; but she had an obligation to address things that are uncomfortable. Id. Air Force Instruction 36-6001 implements the agency’s policy directive and the Department of Defense’s Instruction on Sexual Assault Prevention and
58 Response (SAPR) Program Procedures. AF-0604, Vol. 7, Tab 6, subtab 4i at 1. The instruction reflects that it supersedes all regulatory and policy guidance within the Air Force that is not expressly mandated by law that is inconsistent with the Instruction. Id. at 5. It is not clear whether the AFI 36-6001 afforded the appellant the authority to allow “C” to carr y a cell phone. Even if the
appellant did not have such authority, however, the statements of the witnesses reflected that the appellant had a good faith belief that she could authorize “C” to carry the cell phone based on her authority as the SARC, the SARC regulations and the exceptions allowed by the policy. Further, it is undisputed that, when informed the command did not think she could authorize the use of the cell phone, the appellant promptly acknowledged the command’s authority. There is no evidence to show that once she was informed of the command’s requirement, she did anything to countermand, undermine, or disregard the requirement. Accordingly, I find that the agency failed to establish that the appellant failed to follow or disregarded instructions and this specification is not sustained. Because the agency failed to prove any of the specifications under this charge, I find that the charge is not sustained. The agency violated the appellant’s right to due process. Even if one or more of the agency’s charges had been sustained, the appellant’s demotion would still have to be reversed because the agency violated her right to due process. The Board has held that the agency’s reliance on the recommended penalty for a charge other than those se t forth in the proposal notice constitutes a violation of due process. Jenkins v. Environmental
Protection Agency, 118 M.S.P.R. 161, ¶¶ 10-12 (2012). In this appeal, Mannon, who initiated the investigation and who was both the proposing and deciding official completed an evaluation of the Douglas factors. In that evaluation, he related the following in relevant part, The offenses are serious. Pushing an Air Force officer is entirely unacceptable, particularly where, as here, there was not provocation.
59 Ignoring or countermanding Air Force directives and impeding an AFOSI investigation is especially troubling. Ms. King’s position as the Sexual Assault Prevention and Response Program Manager brings her into frequent contact with airmen in the early stages of their careers. Counseling young impressionable individuals to violate Air Force regulations breeds long term disrespect for institutional rules and undermines good order and discipline. Making a false statement in order to manipulate an outcome is likewise detrimental to Air Force core values. Ms. King’s offenses were numerous and intentional. … In reviewing the Agency’s Table of Penalties, the offense of unacceptable behavior is not listed. However, the conduct described in Charge I, Specification 1, of the notice of proposed removal 39 is similar to “deliberate misrepresentation” which carries a 1 st offense penalty of reprimand to removal. The conduct described in Charge I, Specification 4, is similar (but arguably more serious than) “deliberate use of abusive or offensive language toward a subordinate” which carries a 1 st offense penalty of reprimand to removal. The conduct described in Charge IV, Specifications 1 and 2, is similar to “deliberate baiting or inciting a subordinate to violate rules or regulations” which carries a 1 st offense penalty of reprimand to removal. … Common sense and experience provided sufficient notice to Ms. King that she could not push an Air Force officer and subordinate; could not engage in dishonesty to mislead, deceive, and manipulate a commander; could not instruct a subordinate, and/or junior military members, to disobey Air Force Instructions. … AF-0604, Vol. 2, Tab 6, subtab 4c. Mannon’s proposal notice did not inform the appellant that he would consider the recommended penalties for charges other than those set out in the proposal notice itself. Mannon’s evaluation of the Douglas factors establishes that he considered the penalties under charges relating to “deliberate
The agency proposed the appellant’s demotion, not her removal. AF -0604, Vol. 4, Tab 6, subtab 4e.
60 misrepresentation,” “deliberate use of abusive or offensive language toward a subordinate,” and “deliberate baiting or inciting a subordinate to violate rules or regulations.” I find that because the agency did not charge the appellant with such misconduct, Mannon’s reliance on the penalties set out for those charges, constituted a violation of the appellant’s right to due process and warrants a reversal of the agency’s action. See Jenkins, 118 M.S.P.R. 161, ¶ 10-12. The appellant asserted affirmative defenses. Although I have not sustained any of the agency’s charges and the demotion must be reversed, the appellant raised affirmative defenses of discrimination and retaliation which must be adjudicated. See Marchese v.
Department of the Navy, 32 M.S.P.R. 461, 464 (1987). The appellant bears the burden of proving her affirmative defenses by preponderant evidence. 5 C.F.R. § 1201.56(a)(2) (2012). The agency’s action is not the result of sex or age discrimination. The appellant alleged that the agency’s action was the result of sex and age discrimination, prohibited personnel practices under 5 U.S.C. § 2302(b). An
employee may establish a prima facie case of prohibited discrimination by introducing preponderant evidence to show that she is a member of a protected group; she was similarly situated to an individual who was not a member of the protected group; and she was treated more harshly or disparately than the individual who was not a member of her protected group. Davis v. Department of the Interior, 114 M.S.P.R. 527, ¶ 7 (2010); Buckler v. Federal Retirement Thrift Investment Board, 73 M.S.P.R. 476, 497 (1997). Further, to prove age
discrimination, the appellant must establish that her age was a factor in her demotion. See Wingate v. U.S. Postal Service, 2012 MSPB 113, ¶ 7 (2012).
Once the appellant has established a prima facie case, the burden shifts to the agency to articulate a legitimate nondiscriminatory reason for the agency’s actions. Davis, 114 M.S.P.R. 527, ¶ 8. Finally, once the agency has articulated a
61 legitimate nondiscriminatory reason for its actions, the burden shifts to the appellant to show that the agency’s proffered explanation constitutes a pretext for discrimination. To do so, the appellant must establish that the stated reason was false or not the real reason for the action and that discrimination was the real reason. (1994). As a female over the agency of forty, the appellant is in a protected group. She contended that male employees who expressed views similar to hers were not subjected to any discipline. She identified Paul Buckingham, an agency Id.; Carter v. Small Business Administration, 61 M.S.P.R. 656, 665
employee who is considered to be a subject matter expert on sexual assault and who had expressed views similar to hers but who was not disciplined for expressing those views. AF-0200, Vol. 11, Tab 31 at 3. Further, the appellant alleged that the agency’s discriminatory motive is shown by Norsworthy’s comments that she was “matronly.” AF-0200, Vol. 13, Tab 39 at 13. During the CDI, the investigator asked whether Norsworthy thought it was “strange or unusual” that the victims almost always requested the appellant. AF-0604, Vol. 4, Tab 6, subtab 4f at 78. Norsworthy replied that he was not sure that the victims almost always requested the appellant. Id. He explained that it was his understanding that the victim advocates tried to establish rapport with victims and if good rapport was established, the victim would “ go back to the victim advocate.” Id. at 79. Norsworthy indicated that there were cases where victims wanted to deal with Anderson because of her age. Id. He noted that
Anderson looked very young, like a teenager, and victims wanted to talk with her rather than the appellant. Id. He explained that the appellant was more Norsworthy noted, “she’s at the age “matronly” and she looked like a mom.
where a lot of these young airmen, 18 to 24 years old, she is the same age of their mother.” Id. In his affidavit, Mannon related that the misconduct identified in Charge I, specifications one and four, and Charge IV, specifications one and two were
62 sufficient to warrant the appellant’s demotion. Mannon specifically denied that he considered the appellant’s age or gender in making his decision. Ex. 4, AF-0200, Vol. 13, Tab 37. I have considered the appellant’s allegations concerning the agency’s discriminatory motive for the demotion, Norsworthy’s comments, and the finding that the evidence proffered by the agency is not sufficient to sustain the charges. Although the appellant contended that she was subjected to disparate treatment, I find that the individual she identified as a comparison employee was not similarly situated to her. Upon consideration of the evidence, including Mannon’s specific denial of any discriminatory motive, I find that the appellant has not demonstrated by preponderant evidence that the agency's reason for its actions was a pretext for sex or age discrimination. Norsworthy did not make the Agency
decision to demote the appellant; rather, Mannon initiated the investigation, then proposed the demotion, and finally decided that the demotion was appropriate. Further, although the charges have not been sustained, it is apparent that Mannon believed the appellant engaged in some misconduct and there is no evidence that he considered the appellant’s sex or age in making his determination. Absent
such evidence, I find that the appellant cannot prevail on th ese affirmative defenses. The appellant did not establish that the demotion was retaliation for her participating in EEO activity. For the appellant to prevail on a contention of illegal retaliation, she has the burden of showing that: (1) she engaged in protected activity; (2) the accused official knew of the protected activity; (3) the adverse action under review could have been retaliation under the circumstances; and (4) there was a genuine nexus between the alleged retaliation and the adverse action. Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986). Vol. 13, Tab 37. Agency Ex. 4, AF-0200,
63 The appellant asserted that the investigator Mannon appointed to conduct the CDI, Risa Hillard, tainted the interview process and was not impartial. AF Vol. 2, Tab 6, subtab 4d at 5. The appellant explained that Hillard knew the appellant worked on the sexual assault cases of two victims who were supervised by Hillard; that prosecution of the sexual assault cases led to the court martial conviction of Colonel Samuel Lofton; and that Lofton was Hillard’s supervisor prior to his removal and they shared similar religious views. Id. Further, the appellant noted that Hillard had counseling sessions and conversation s with one of the victims during which Hillard expressed her opinions concerning Lofton’s court martial and the victim’s appearance as a witness at the court martial. AF-0604, Vol. 2, Tab 6, subtab 4d at 4. The appellant asserted that it was known that she assisted the victims with regard to their equal employment opportunity (EEO) complaints, and that the agency ultimately settled the victims EEO complaints while Mannon was the Wing Commander of the unit responsible for bearing the costs of the settlement. Id. In his affidavit, Mannon averred that he did not retaliate against the appellant for prior EEO activity. Mannon related that Lofton’s trial occurred prior to Mannon’s arrival at Sheppard, and he stated that he was not aware that the appellant had been involved in Lofton’s trial. The appellant provided a
PowerPoint timeline of the events, charges, the CDI, and discipline. AF-0200, Vol. 13, Tab 44. That timeline shows that Lofton’s conviction occurred in June 2008. Id. Mannon did not arrive at Sheppard until July 2008. Thus he was not the Commander at the time the Lofton case arose and there is nothing in the record to show that he had any involvement with the Lofton case. Even if, as the appellant alleged, the agency later settled the complaining witnesses’ EEO complaints, there is no evidence to show that Mannon had any motivation to retaliate against the appellant for any of her activities relat ing to the Lofton matter. I find that the appellant failed to establish that her demotion was
retaliation based on her participation in protected EEO activity.
64 The appellant has the burden of proving that the agency’s action is retaliation for protected whistleblowing. The appellant asserted that the agency’s action was retaliation for making protected disclosures under 5 U.S.C. § 2302(b)(8). AF-0604, Vol. 1, Tab 1. In an adverse action case, which is otherwise appealable to the Board, an appellant’s claim of whistleblower reprisal is treated as an affirmative defense. See Simmons v. Department of the Air Force, 99 M.S.P.R. 28, ¶ 22 (2005); Grubb v. Department of the Interior, 96 M.S.P.R. 377, ¶ 14 (2004). The appellant must show by preponderant evidence that she made a disclosure protected under 5 U.S.C. § 2302(b)(8) 40 and that the disclosure was a contributing factor 41 in the agency’s personnel action. Id. The appellant may show that a disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contribut ing factor in the personnel action. See Simmons, 99 M.S.P.R. 28, ¶ 22; Grubb, 96 M.S.P.R. 377, ¶ 14. If the appellant establishes a prima facie case of reprisal for
whistleblowing, the burden of persuasion shifts to the agency to show by clear and convincing evidence 42 that it would have taken the same personnel action
Under 5 which the regulation, substantial
U.S.C. § 2302(b)(8), a protected disclosure is any disclosure of information employee reasonably believes evidences a violation of any law, rule, or or gross mismanagement, a gross waste of funds, an abuse of authority, or a and specific danger to public health or safety.
Contributing factor means any protected disclosure that affects an agency’s decision to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure. 5 C.F.R. § 1209.4(c) (2012).
Clear and convincing evidence is that “measure or degree of proof tha t produces in the mind of the trier of fact a firm belief as to the allegations sought to be established.” 5 C.F.R. § 1209.4(d) (2012).
65 absent any protected activity. 96 M.S.P.R. 377, ¶ 15. The appellant established that she made a protected disclosure that was a contributing factor in the agency’s demotion action. The appellant reported that the investigation which was based on Habel’s allegations was initiated “within hours” of her sending an e -mail to her supervisor, Norsworthy, in which she identified problems with the OSI and their handling of victims of sexual assault. The appellant noted that between See Simmons, 99 M.S.P.R. 28, ¶ 23; Grubb,
November 2008 and February 2009, Habel made it increasingly difficult for her to perform her SARC duties. She reported that on at least three occasions, Habel accused her of obstructing justice. Further, Habel repeatedly informed her that he was a Federal law enforcement officer; and that she was required to “do what he said;” and although there were established procedures set out in a Memorandum of Agreement signed by the previous detachment chief, Habel disregarded the agreement and changed the procedures for his agents to follow. The appellant asserted that Mannon failed to protect her and created a hostile work environment. AF-0604, Vol. 1, Tab 1. The record reflects that, on February 26, 2009, the appellant forwarded an e-mail to Norsworthy and Mannon concerning the ongoing difficulties she was experiencing with Habel. AF-0604, Vol.7, Tab 6, subtab 4f at 843. In that email, the appellant reported the following, in relevant part: OSI has stated that their authority overrides anything in our AFI * OSI today demanded “immediate” interviews for all unrestricted cases – with no opportunity for a 5-10 minute private SARC interview as part of the process. Mr Habel has declined to acknowledge the victim’s right to speak with the SARC or their assigned Victim Advocate privately … Today’s victim reported to the SARC office and OSI agents were already in place – she stated that it made her hesitate to speak to
66 anyone – victims are often hesitant to report and this will erode reporting of sexual assaults at Sheppard and our program Today’s victim was encouraged to get a SANE exam by exception (due to the time frame), however, OSI Agents would not allow me to discuss this with her privately until they completed her interview… which took over 3 hours Id. at 843-44. The appellant related that the OSI’s action interfered with the SARC office’s ability to have the victim formally file a report of sexual assault and sign a DD Form 2910. Id. at 844. She explained that the DD Form 2910 is the official record of a report of sexual assault. Id. She related that upon reviewing and signing the form, victims acknowledged their rights to medical care, advocacy, and services. Id. Further, the appellant indicated that by signing the form,
victims acknowledged that law enforcement and their commanders would be informed. The appellant noted that she was concerned that completion of the DD Form 2910 raised legal issues because it could lead to a situation where a victim unknowingly gave up rights. The appellant stated: * Failure of OSI to recognize the DD Form 2910 as an integral part of any report of sexual assault violates the intent of Section 301 of Article 5, United States Code and Chapter 55 of Title 10, United States Code. * Completion of the form is voluntary, however, when we cannot discuss and offer the information to the Victim during our initial private interview impedes the effective management and support required procedurally as a part of the Sexual Assault Prevention and Response Program. Because the DD From 2910 is the core of the SARC case file, lack of this interview and documentation delays my ability to report allegations of Sexual Assault to the CV, CC and MAJCOM as required by AFI 36-6001 … * OSI will not take information from my office directly (example of recent case where the alleged perpetrator was the victim’s roommate; we called to pass on name and room number to allow them to seal the dorm room)
67 * During a recent case, OSI has interfered with our ability to get the victim medical treatment, to include the forensic exam in a timely manner They feel speaking with OSI Agents is the priority versus getting the victim to the appropriate medical facility The Victim’s concerns for safety and medical treatment are absolutely the FIRST priority for any case in our response model and in any advocacy model for sexual assault programs. AF-0604, Vol. 7, Tab 6, subtab 4f at 844-45 (punctuation, grammar, spelling, and bullet points as in the original). In the e-mail, the appellant related that she had raised some of the issues with MAJCOM, but the interaction with Habel continued to deteriorate. The appellant stated, “I hesitate to get MAJCOM
engaged because I know that Gen [sic] Mannon likes to try to solve our challenges locally.” AF-0604, Vol. 7, Tab 6, subtab 4f at 843. In his affidavit, Mannon stated that he did not see the appellant’s February 26, 2009 e-mail concerning coordination with the OSI, until after he had made the decision to initiate the CDI. He stated that he did not believe that the email equated to whistleblower activity. He suggested that the appellant wrote the e-mail because she had been directed to report to Mannon’s office that morning. Agency Ex. 4, AF-0200, Vol. 13, Tab 37. Even if Mannon had decided to initiate the CDI prior to the appellant’s protected disclosure, it is undisputed that Mannon proposed and decided the demotion after the appellant had made the disclosure. Further, it is undisputed that he was aware of the disclosure. His stated that he assumed the appellant wrote the e-mail because she had been summoned to his office, but failed to otherwise explain his assumption. Upon consideration of the appellant’s e-mail to Norsworthy and Mannon, the SARC regulation, the DOD’s policies and regulations concerning sexual assaults, I find that the appellant disclosed information which she reasonably believed evidenced a violation of law, rule, and/or regulation and the deciding official, Mannon, was aware of the disclosure. Further, I find that the CDI,
68 proposal notice and decision to demote the appellant occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the demotion. Accordingly I find that the appellant has met her burden of proving that she made a protected disclosure that was a contributing factor in her demotion. See Carey v. Department of Veterans
Affairs, 93 M.S.P.R. 676, ¶ 13 (2009) (once the knowledge/timing test has been met, the appellant has met her burden regarding contributing factor). The agency failed to establish by clear and convincing evidence that it would have taken the same action absent the appellant’s disclosure . Once the appellant has met her burden, the agency must show by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure. See Whitmore v. Department of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). In determining whether the agency has met its burden of clear and convincing evidence that it would have taken the same personnel action in the absence of whistleblowing, the following factors should be considered: (1) the strength of the agency’s evidence in support of its personnel acti on; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. 43 See Whitmore¸ 680 F.3d at 1365; Carr v. Social Security Administration, 185 F3d 1313, 1318 (Fed. Cir. 1999). In Whitmore, the Court held that all of the pertinent evidence must be considered in evaluating whether the agency has met its burden. Whitmore, 680 F.3d at 1368. The Court noted:
Where the record does not contain any evidence concerning actions taken against similarly situated non-whistleblowers, the third Carr factor may not be a significant factor in the evidentiary analysis. Whitmore, 680 F.3d at 1374; McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 65 (2011).
69 The laws protecting whistleblowers from retaliatory personnel actions provide important benefits to the public, yet whistleblowers are at a severe evidentiary disadvantage to succeed in their def enses. Thus, the tribunals hearing those defenses must remain vigilant to ensure that an agency taking adverse employment action against a whistleblower carries its statutory burden to prove -- by clear and convincing evidence – that the same adverse action would have been taken absent the whistleblowing. Whitmore¸ 680 F.3d at 1377. Therefore, in order to determine whether the agency has met its burden, all of the pertinent evidence must be considered. Id. at 1368. Mannon stated that once the CDI was finalized, he personally reviewed the entire investigation prior to making a disciplinary determination. Mannon
reported that he talked with several advisors including the A1 (manpower and Personnel) at the Air Education Training Command (AETC), legal, t he AETC SARC Burnet, and his own commander. He indicated that with the exception of Burnet, all of his advisors recommended removing the appellant. The record also reflects that Mannon discussed the issues with Sallinger, Habel, and Norsworthy. AF-0200, Vol. 13, Tab 37. Chief Kenneth Sallinger, Command Master Sergeant, reported that he had limited contact with the appellant but he became concerned when he started receiving second-hand derogatory information about the appellant from Crowder and Habel. Sallinger informed the CDI investigator that Crowder and Habel claimed that the appellant was “extremely aggressive and combative” in the conduct of her duties and interfered with commanders and criminal investigators’ responsibilities. AF-0604, Vol. 5, Tab 5, subtab 4f at 219. During his CDI interview, Habel was asked whether he knew of anyone else who could provide information concerning the appellant. AF -0604, Vol. 4, Tab 6, subtab 4f at 120. He responded that he had conversations with the legal office and with “command” concerning the appellant and he did not have suggestions for anyone other than the people who were already on the
70 investigator’s schedule. Id. Habel did not explain how he knew who would be interviewed and the investigator did not ask him how he obtained that information. Throughout his CDI interview, Norsworthy indicated that there were ongoing problems with the interaction between the appellant and Habel. 0604, Vol. 4, Tab 6, subtab 4f at 46-47, 49-50, 52, 63-63, 85-89. He stated: “ I have tried to address it individually with them by asking them to play nice with each other. I was on the way to having a three -way meeting between Tim Habel, Barb King, and myself, in my office when it was taken out of my hands when General Mannon asked for a CDI opened up on the allegations. AF-0604, Vol. 4, Tab 6, subtab 4f at 50. Gallego informed the CDI investigator that Stephanie Armel, the former administrative assistant, called Anderson and informed her that the appellant had been removed. AF-0604, Vol. 5, Tab 6, subtab 4f at 362. Gallego stated that she was confused by the information and she could not figure out who was leaking information concerning the investigation, but she wanted the investigator to be aware of it. Id. at 362-63. Armel was interviewed during the investigation conducted by the Inspector General. 44 AF-0200, Vol. 13, Tab 36 at 4. She related that she had worked in the SARC office for a period of time. 45 During her IG interview, Armel stated that she had learned the appellant had been removed, for cause, from the SARC program. Id. at 5, 6. She indicated that the Wing Commander, General Mannon had addressed the victim advocates and informed them, that if the appellant had
Armel was interviewed on June 23, 2009. The investigator, Major David Escobedo, informed Armel that he was investigating allegations of violations of law, rule, or regulation, gross mismanagement and abuse of authority by employees at the 82 nd Training Wing at Sheppard. AF-0200, Vol. 13, Tab 36 at 4. Escobedo did not provide any other information concerning the IG investigation.
Armel as not working in the SARC office at the time the events cited in the proposal notice occurred.
71 been in the military, she would have been court-martialed. Id. Armel stated that she was not present at the meeting, but she was still an advocate and other advocates had told her what Mannon said. Id. at 5, 6. Armel also indicated that she was aware that Mannon had initiated a CDI and that the allegations involved the OSI. Id. at 7. In considering the Carr factors, I note that none of the agency’s charges have been sustained and I find that the strength of the agency’s evidence in support of its personnel action is weak. Because the record does not contain any evidence to show that the agency took similar actions against employees who are not whistleblowers but who are otherwise similarly situated, I find that the third factor is not significant in determining whether the agency has met its burden. What remains to be determined is the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision. It is undisputed that the agency’s response and handling of allegations of sexual assault in the armed forces has received significant attention in Congress, in the national media, and the Department of Defense. See AF-0200, Vol. 10, Tabs 26, 28. Notwithstanding the agency’s stated commitment to the guidelines set out in its Sexual Assault Prevention & Response Program, the testimony of the witnesses established that there were still problems with implementation of the program at the local level and coordination among the offices responsible for handling such allegations. victims’ rights. The appellant alleged that the OSI was failing to comply with the agency’s and DoD’s SAPR regulations and was violating Given the Lofton case that had already been adjudicated at Sheppard, I find that it is unlikely that the appellant’s allegations concer ning the OSI would have been taken lightly. Mannon’s statement, that he did not consider the appellant’s disclosure to be whistleblowing, is not convincing. There is evidence that after receipt of the appellant’s disclosure but prior to the conclusion of the CDI and the issuance of proposal notice or decision, Mannon informed
72 victim advocates that the appellant had been removed from her position and stated to them that, if the appellant had been a military member, she would have been court-martialed (emphasis added). At that point, it does not appear that
Mannon had any evidence establishing that the appellant had engaged in misconduct, other than Habel’s unsubstantiated allegations. Further, the only other information Mannon had was the appellant’s e-mail raising issues concerning the OSI’s treatment of victims of sexual assault. It is undisputed that Mannon consulted with Habel after the appellant’s protected disclosure but prior to taking the action. Certainly, Habel had motive to prevent any embarrassment to the OSI as the result of the appellant’s allegations and, by discrediting her, it is possible that her allegations would be discounted or ignored and Mannon consulted with Habel prior to deciding on the demotion. Based on the evidence before me, I find that there was a strong motive for Mannon and Habel to retaliate because of the potential for negative publicity to Sheppard, the Air Force, and DoD, and increased Congressional attention. Considering all of the pertinent
evidence, I find that the agency failed to establish by clear and convincing evidence that it would have taken the demotion action absent the appellant’s protected disclosure. Accordingly, I find that the agency’s action was retaliation for protected whistleblowing. DECISION The agency’s action is REVERSED. ORDER I ORDER the agency to cancel the appellant’s demotion, effective July 19, 2009. This action must be accomplished no later than 20 calendar days after the date this initial decision becomes final. I ORDER the agency to pay appellant by check or through electronic funds transfer for the appropriate amount of back pay, with interest and to adjust
73 benefits with appropriate credits and deductions in accordance with the Office of Personnel Management's regulations no later than 60 calendar days after the date this initial decision becomes final. I ORDER the appellant to cooperate in good faith with the agency's efforts to compute the amount of back pay and benefits due and to provide all necessary information requested b y the agency to help it comply. If there is a dispute about the amount of back pay due, I ORDER the agency to pay appellant by check or through electronic funds transfer for the undisputed amount no later than 60 calendar days after the date this initial decision becomes final. Appellant may then file a petition for enforcement with this office to resolve the disputed amount. I ORDER the agency to inform appellant in writing of all actions taken to comply with the Board's Order and the date on which it be lieves it has fully complied. If not notified, appellant must ask the agency about its efforts to
comply before filing a petition for enforcement with this office. 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 are attached. I ORDER the agency 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.
INTERIM RELIEF Although appellant is the prevailing party, I have determined not to order interim relief pursuant to 5 U.S.C. § 7701(b)(2)(A), for the following reasons: the appellant has moved to another position and is no longer working at Sheppard Air Force Base.
FOR THE BOARD:
_/S/_____________________________ Marie A. Malouf Administrative Judge
NOTICE TO PARTIES CONCERNING SETTLEMENT The date that this initial decision becomes final, which is set forth below, is the last day that the administrative judge may vacate the ini tial decision in order to accept a settlement agreement into the record. See 5 C.F.R. § 1201.112(a)(5). NOTICE TO APPELLANT This initial decision will become final on November 7, 2012, unless a petition for review is filed by that date or the Board reopens the case on its own motion. This is an important date because it is usually the last day on which you can file a petition for review with the Board. However, if you prove that you received this initial decision more than 5 days after the date of iss uance, you may file a petition for review within 30 days after the date you actually receive the initial decision. If you are represented, the 30-day period begins to run upon either your receipt of the initial decision or its receipt by your representati ve, whichever comes first. You must establish the date on which you or your
representative received it. The date on which the initial decision becomes final also controls when you can file a petition for review with the Equal Employment Opportunity Commission (EEOC) or with a federal court. The paragraphs that follow tell you how and when to file with the Board, the EEOC, or the federal
75 courts. These instructions are important because if you wish to file a petition, you must file it within the proper time period. BOARD REVIEW You may request Board review of this initial decision by filing a petition for review. Your petition for review must state your objections to the initial
decision, supported by references to applicable laws, regulations, and the re cord. You must file your petition with: The Clerk of the Board Merit Systems Protection Board 1615 M Street, NW. Washington, DC 20419 A petition for review may be filed by mail, facsimile (fax), personal or commercial delivery, or electronic filing. A petition for review submitted by
electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and may only be accomplished at the Board's e-Appeal website
( https://e-appeal.mspb.gov ). If you file a petition for review, the Board will obtain the record in your case from the administrative judge and you should not submit anything to the Board that is already part of the record. Your petition must be filed with the Clerk of the Board no later than the date this initial decision becomes final, or if this initial decision is received by you or your representative more than 5 days after the date of issuance, 30 days after the date you or your representative actually received the initial decision, whichever was first. If you claim that you and your representative both received this decision more than 5 days after its issuance, you have the burden to prove to the Board the earlier date of receipt. You must also show that any delay in receiving the initial d ecision was not due to the deliberate evasion of receipt. You may meet your burden by filing evidence and argument, sworn or under penalty of perjury (see 5 C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail is determined by
76 the postmark date. The date of filing by fax or by electronic filing is the date of submission. The date of filing by personal delivery is the date on which the Board receives the document. The date of filing by commercial delivery is the date the document was delivered to the commercial delivery service. Your
petition may be rejected and returned to you if you fail to provide a statement of how you served your petition on the other party. See 5 C.F.R. § 1201.4(j). If the petition is filed electronically, the online process itself will serve the petition on other e-filers. See 5 C.F.R. § 1201.14(j)(1). EQUAL EMPLOYMENT OPPORTUNITY COMMISSION REVIEW If you disagree with the Board's final decision on discrimination, you may obtain further administrative review by filing a petition with the EEOC no later than 30 calendar days after the date this initial decision becomes final. If you submit your petition by regular U.S. mail the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit your petition 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, DC 20507 JUDICIAL REVIEW If you do not want to file a petition with the EEOC, you may ask for judicial review of both discrimination and nondiscrimination issues by filing a civil action. If you are asserting a claim under the Civil Rights Act or under the Rehabilitation Act, you must file your appeal with the appropriate United States district court as provided in 42 U.S.C. § 2000e-5. If you file a civil action with
77 the court, you must name the head of the agency as the defenda nt. See 42 U.S.C. § 2000e-16(c). To be timely, your civil action under the Civil Rights Act,
42 U.S.C. § 2000e-16(c), must be filed no later than 30 calendar days after the date this initial decision becomes final. If you are asserting a claim under the Age Discrimination in Employment Act, your claim must be filed with the appropriate United States district court as provided in 29 U.S.C. § 633a(c). In some, but not all districts you may have up to 6 years to file such a civil action. See 28 U.S.C. § 2401(a). If you choose not to contest the Board's decision on discrimination, you may ask for judicial review of the nondiscrimination issues by filing a petition with: The United States Court of Appeals for the Federal Circuit 717 Madison Place, NW. Washington, DC 20439 You may not file your petition with the court before this decision becomes final. To be timely, your petition must be received by the court no later than 60 calendar days after the date this initial decision becomes final. 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). You may read this law, as well as review the Board’s regulations and other related material, at our website, http://www.mspb.gov. Additional information is available at the Of particular relevance is the court's
court's website, www.cafc.uscourts.gov .
"Guide for Pro Se Petitioners and Appellants," which is contained within the court's Rules of Practice , and Forms 5, 6, and 11. ATTORNEY FEES If no petition for review is filed, you may ask for the payment of attorney fees (plus costs, expert witness fees, and litigation expenses, where applicable) by
78 filing a motion with this office as soon as possible, but no later than 60 calendar days after the date this initial decision becomes final. Any such motion must be prepared in accordance with the provisions of 5 C.F.R. Part 1201, Subpart H, and applicable case law. ENFORCEMENT If, after the agency has informed you that it has fully complied with this decision, you believe that there has not been full compliance, you may ask the Board to enforce its decision by filing a petition for enforcement with this office, describing specifically the reasons why you believe there is noncompliance. Your petition must include the date and results of any communications regarding compliance, and a statement showing that a copy of the petition was either mailed or hand-delivered to the agency. Any petition for enforcement must be filed no more than 30 days after the date of service of the agency’s notice that it has complied with the decision. If you believe that your petition is filed late, you should include a statement and evidence showing good cause for the delay and a request for an extension of time for filing. NOTICE TO AGENCY/INTERVENOR The agency or intervenor may file a petition for review of this initial decision in accordance with the Board's regulations. NOTICE TO THE PARTIES If this decision becomes the final decision of the Board, a copy of the decision will then be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8).
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