Valentine Ukandu v. Department of the Air Force

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

VALENTINE UKANDU, DOCKET NUMBER Appellant, AT-0752-21-0261-I-1 v.

DEPARTMENT OF THE AIR FORCE, DATE: December 8, 2022 Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Matthew Fogg, Washington, D.C., for the appellant.

Sandra Fortson, Esquire, Joint Base Andrews, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order.

BACKGROUND

¶2 The appellant was employed as a GS-13 Contract Specialist with the agency. Initial Appeal File (IAF), Tab 10 at 20. A Defense Acquisition Workforce Improvement Act (DAWIA) Level II certification is a requirement for a GS-13 Contract Specialist. IAF, Tab 20 at 2 (setting forth the parties’ stipulations). Effective March 2, 2021, the agency removed the appellant from the Federal service based on the charges of failure to maintain a condition of employment (1 specification) and lack of candor (2 specifications). IAF, Tab 7 at 22-30. The agency alleged that the appellant did not maintain a condition of employment because he did not possess a DAWIA Level II certification and that he lacked candor when he misstated his level of certification in the job application process. Id. at 22-23.

¶3 The appellant filed a Board appeal challenging his removal. IAF, Tab 1. He also raised affirmative defenses of harmful procedural error, prohibited personnel practices, unlawful discrimination, and retaliation for other protected activity. Id. at 3. The administrative judge issued an order informing the appellant how to prove his affirmative defenses, IAF, Tab 14 at 2-9, and an order setting forth the burden of proof and elements for the agency’s charges of failure to maintain a condition of employment and lack of candor. IAF, Tab 20 at 1-2. ¶4 After holding the appellant’s requested hearing, the administrative judge issued an initial decision that affirmed the appellant’s removal. IAF, Tab 25, Initial Decision (ID) at 1, 15. The administrative judge sustained the charge of failure to maintain a condition of employment because he found that a DAWIA Level II certification was required for contract specialists at or higher than GS-11, and the appellant’s Level II certification was revoked in 2012. 2 ID at 3-6.

He noted that when, as here, there is no evidence of bad faith or patent unfairness, the Board defers to the agency’s determinations as to the requirements that must be fulfilled in order for an individual to qualify for appointment to a particular position and to retain that position. ID at 6. The administrative judge sustained the charge of lack of candor, reasoning that the appellant made a knowing misrepresentation concerning his DAWIA Level II certification in applying for a Supervisory Contract Specialist position in October 2020 and in providing documents to an agency human resources employee showing that he had a Level II certification in November 2020. ID at 7-8. He found that the appellant failed to prove his claims of race, national origin, and age discrimination, retaliation for equal employment opportunity (EEO) activity, and harmful procedural error. ID at 8-13. Finally, the administrative judge found that the agency proved nexus and that removal was a reasonable penalty. ID at 13-14. ¶5 The appellant has filed a petition for review of the initial decision. 3 Petition for Review (PFR) File, Tab 2. He sets forth his extensive training in procurement matters, and he claims that he met the requirements for a DAWIA system in 2012 due to the appellant’s incomplete training, i.e., he had not completed a contracting course. Id. The agency’s Training and Certification Help Desk Manager testified that he discovered that the appellant had not completed the requirements for DAWIA Level II certification in 2019 or 2020 when the appellant sought to attend training for DAWIA Level III certification. HR1 (testimony of the agency’s Training and Certification Help Desk Manager).

Level II certification. Id. at 4-5. The agency has filed a response. 4 PFR File, Tab 4.

ANALYSIS

¶6 The charge of failure to fulfill a condition of employment contains two elements: (1) the requirement at issue is a condition of employment; and (2) the appellant failed to meet that condition. Gallegos v. Department of the Air Force, 121 M.S.P.R. 349, ¶ 6 (2014). Absent evidence of bad faith or patent unfairness, the Board defers to the agency’s requirements that must be fulfilled for an individual to qualify for appointment to, or retention in, a particular position. Id.

¶7 In this appeal, the condition of employment at issue is a DAWIA Level II certification. IAF, Tab 7 at 22. It is undisputed that the certification is a requirement for the appellant’s position, and thus, the first element of the charge is satisfied. IAF, Tab 20 at 2. The issue is whether the second element—that the appellant failed to meet a condition of employment—is satisfied.

¶8 On review, the appellant reiterates that he met the requirements for a DAWIA Level II certification. PFR File, Tab 2 at 4. The administrative judge considered the appellant’s testimony on the matter, but he found that the agency’s Training and Certification Help Desk Manager credibly testified that the academic documentation submitted by the appellant was not adequate equivalent coursework to support substitution for the agency’s coursework requirements. ID at 5; IAF, Tab 23, Hearing Recording Day 1 (HR1) (testimony of the agency’s Training and Certification Help Desk Manager). Thus, the administrative judge found that the appellant failed to meet the agency’s requirement and that the agency proved its charge of failure to maintain a condition of employment. ID at 6.

¶9 However, in appeals such as this, when the agency controls the withdrawal or revocation of a certification necessary to perform in a position, the Board’s authority generally extends to a review of the merits of that withdrawal or revocation. Adams v. Department of the Army, 105 M.S.P.R. 50, ¶¶ 10, 19 (2007), aff’d, 273 F. App’x 947 (Fed. Cir. 2008). Specifically, in Adams, the agency suspended the appellant’s computer access and then removed him for failure to maintain access to the agency’s computer system. Id., ¶ 6. Although the agency in that appeal argued that the Board lacked the authority to review the merits of the decision to suspend computer access because it was not an appealable adverse action, the Board found that, when a removal is based on the failure to possess a certification or similar qualification, it had the authority to review the merits of the agency’s revocation of the certification or similar qualification necessary for the employee to hold his position. 5 Id., ¶¶ 9-10. ¶10 Similarly, in Siegert v. Department of the Army, 38 M.S.P.R. 684, 685-86 (1988), the agency revoked the appellant’s clinical privileges and then removed him from his Clinical Psychologist position for failure to maintain those privileges. The Board found that it had the authority to review the actions of the agency credentialing committee and remanded the appeal to the administrative judge to address that issue. Id. at 691. Finally, in a case very similar to the instant appeal, McGillivray v. Federal Emergency Management Agency, 58 M.S.P.R. 398, 402 (1993), the agency removed the appellant based on the loss of his procurement authority, and the Board found that it had the authority to consider the reasons underlying the agency’s decision to revoke the employee’s procurement authority. 6

¶11 Because the administrative judge failed to fully identify the issues in this appeal, and the parties did not have the opportunity to fully develop the record on those issues, remand is required. On remand, the administrative judge shall afford the parties the opportunity to conduct discovery and submit additional evidence and argument. The administrative judge shall hold a supplemental hearing, if requested by the appellant, and shall issue a new initial decision addressing the agency’s charges, 7 nexus, penalty, and the appellant’s affirmative defenses. 8 See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (stating that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and legal reasoning, as well as the authorities on which that reasoning rests).

ORDER

¶12 For the reasons discussed above, we remand this case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: /s/ for Jennifer Everling Acting Clerk of the Board Washington, D.C.