Melanie A. Moore v. Department of the Air Force
Background
- Appellant Melanie A. Moore, a Sheet Metal Mechanic at the Air Force, was removed for three misconduct charges: failure to wear PPE, discourteous conduct, and failure to follow a direct order.
- An administrative judge (AJ) conducted a hearing, sustained all three charges, found a nexus to the efficiency of the service, and concluded removal was a reasonable penalty.
- The AJ also rejected Moore’s affirmative defense that the removal was retaliatory for protected EEO activity.
- Moore filed a petition for review challenging the factual findings and the reasonableness of the penalty; the agency opposed the petition.
- The Board reviewed Moore’s petition under 5 C.F.R. § 1201.115 and denied review, affirming the initial decision as the Board’s final decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the AJ made erroneous findings of material fact that would warrant reversal | Moore asserts testimony conflicts and she consistently denied wrongdoing; alleges factual errors and new evidence about a retired official | Agency maintains AJ credibility findings are supported by record and demeanor-based assessments are entitled to deference | Denied — Moore’s assertions were conclusory, lacked specific record citations, and did not overcome deference to AJ credibility findings |
| Whether Moore proved reprisal for protected EEO activity (affirmative defense) | Moore contends removal was retaliatory | Agency contends no credible evidence of reprisal; charges were proven and supported | Denied — AJ reasonably found Moore failed to prove reprisal |
| Whether the removal penalty was reasonable given prior discipline | Moore argues penalty unreasonable and raises ‘‘new’’ evidence and that prior discipline is under appeal | Agency relied on Moore’s disciplinary history and found removal within tolerable bounds | Affirmed — Board found penalty within reason; alleged new evidence was impeachment and prior discipline challenge did not show clear error |
| Whether post-decision or impeachment evidence justified reopening/reversal | Moore offered information about a retired official’s departure and suggested witnesses tied to him are unreliable | Agency noted such evidence is impeachment and not generally material to reopen; prior actions remain part of record unless clearly erroneous | Denied — evidence was not material and did not undermine AJ analysis |
Key Cases Cited
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (Board will not lightly overturn demeanor-based credibility findings)
- Tines v. Department of the Air Force, 56 M.S.P.R. 90 (1992) (petition for review must identify specific record evidence to support claim of erroneous factual findings)
- Hill v. Department of the Army, 120 M.S.P.R. 340 (2013) (post-decision evidence offered only to impeach a witness is generally not material)
- Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357 (1987) (Board will not disturb AJ findings absent internal inconsistency or inherent improbability)
- Bolling v. Department of the Air Force, 9 M.S.P.R. 335 (1981) (prior disciplinary actions in the record may be relied upon unless clearly erroneous)
- Guzman-Muelling v. Social Security Administration, 91 M.S.P.R. 601 (2002) (challenge to prior discipline does not change the Board’s limited review standard)