“Oh what a tangled web we weave…to deceive.” (Sir Walter Scott) This case is indeed a tangled web of facts, contradictions of facts, denials, victory and defeat. The case is Watson v Treasury (CAFC No. 2023-2435 (nonprecedential) 11/22/2024.
The rather involved facts in this case are laid out in the court’s opinion. I will try to condense the gist of the rather bizarre interaction between Ft. Knox Police Officer Watson and a couple of his coworkers. After Watson missed out on a promotion from Sergeant to Lieutenant he apparently zeroed in on one management official (Posey), against whom he had previously lobbed a discrimination complaint but who then served on the promotion panel, as a key factor in or the reason for Watson not getting the higher rank. Watson believed Posey—who was at the time second in command at Ft. Knox—should have recused herself from serving on the panel. He said so to a coworker (Fay) and told him he was considering hiring someone to “look into the integrity of the promotion process.” (Opinion p. 3)
A third police officer (Ferguson) then told Watson and Fay that she was considering hiring a private investigator to “surveil” whether Posey and another Ft. Knox employee (Boykin) had a “close personal relationship” which would explain why Posey always sided with Boykin against Ferguson. Apparently, Watson went in with Ferguson to hire the investigator to the tune of $300, although Watson consistently denied his involvement throughout this case. Unfortunately for the two of them, Fay went to Posey and told her what was going on and that Watson and Ferguson were behind it. Posey was alarmed and reported to headquarters that she feared for her safety and that of her family with a private investigator following her around. (P. 4)
Predictably, the Field Chief at Ft. Knox called first Ferguson and then Watson into his office, accompanied by their union rep, and confronted each in turn. Ferguson admitted she had hired an investigator but denied that Watson had been involved. She was immediately relieved of duty and escorted off the facility. When Watson was then confronted, he denied any involvement; however, having been “fingered” by Fay, Watson, too, was relieved of duty and escorted off the facility. (P. 6)
I will skip the various texts, secretly recorded phone calls and other evidence that mounted up detailing this plot before the OIG opened an investigation and interviewed Ferguson, Watson and Fay. Once again, Watson denied to the OIG that he had anything to do with hiring the investigator. He claimed the whole thing was a joke. The other two swore under oath that Watson had been involved in the hiring of and payment to the private investigator. Not surprisingly, given the testimony of his coworkers and recorded phone and text messages implicating Watson, the OIG concluded and reported that Watson had been involved. Ft. Knox removed Watson for involvement in the scheme (Conduct Unbecoming a Federal Officer) and for lying to investigators. (p. 8)
Watson’s appeal to the Merit Systems Protection Board (MSPB) was about as convoluted as the facts leading up to his removal. Explained as simply as possible, the AJ (administrative judge), following what had to have been an interesting factual hearing with each of the three having a different version of the facts, determined that of the three employees tangled up in the plot, Watson was the most credible witness. Watson stuck to his story to the OIG. He testified that he viewed the whole scheme as a joke and denied that he had been involved in hiring or paying the private investigator. Ferguson, supported by Fay, testified that Watson had been involved and helped pay. The AJ, acknowledging that the various accounts were contradictory, found Watson to be the more credible. She stated Watson was “calm and professional…[and] consistently and steadfastly denied involvement in hiring and paying the private investigator throughout the agency’s investigations and the hearing.” (Process. 10). The AJ accepted Watson’s version of the facts and used this finding to hold that the agency failed to prove its case against Watson. She ordered the agency to cancel Watson’s removal and to provide back pay and benefits. (p. 11)
When the agency appealed to the full Board, the MSPB, recognizing the AJ decision turned on witness credibility determinations, analyzed those determinations and the reasoning that led up to them and overturned the AJ’s reasoning. The Board proceeded to do its own credibility determinations. By the time the dust settled, the Board found the other two employees’ testimony (Ferguson and Fay) “more likely than [Watson’s] version of events.” (p. 13) The Board overturned its AJ’s decision and sustained Watson’s removal.
Next up, Watson petitioned the federal appeals court, arguing that the AJ’s decision was the correct one, the full Board erred in overturning it and substituting its own credibility determinations, and a few other procedural arguments. The appeals court recognized that it is unusual for the full Board to overturn an AJ’s “demeanor-based credibility determinations before the Board may make its own credibility determinations.” (P. 15) The court goes on to rule that the Board “had sufficiently sound reasons, supported by substantial evidence, to reject the AJ’s credibility determinations and exercise its plenary authority to credit the testimony of the two agency witnesses and discredit Watson’s testimony.” (p. 16)
Mr. Watson was so close to victory given the AJ’s initial decision. Unfortunately for him this is a relatively, dare I say, “rare” situation where the full Board upended its own AJ and proceeded to make its own witness credibility determination that worked against Watson. He lost his Board appeal and the court upheld the Board’s action. Mr. Watson stays fired.
There was no word what happened with the private investigator, the $300 he was paid, nor of the administrative fate of Ferguson and Fay.
