The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNA JO KRUER, DOCKET NUMBER
Appellant, CH-0752-13-0595-I-1
v.
DEPARTMENT OF COMMERCE, DATE: August 28, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeremy A. Lannan, Louisville, Kentucky, for the appellant.
Kelly Frederick, Jeffersonville, Indiana, for the appellant.
Johahna Johnson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review. Except as
modified by the penalty analysis set forth below, we AFFIRM the initial decision.
¶2 The appellant was a GS-5 Lead Statistical Assistant in a center which has as
its function telephone interviewing activities. Initial Appeal File (IAF), Tab 10 at
127-30. Serving as a “coach,” she provided quality control of data obtained by
agency employees who conducted telephone surveys by monitoring interviewing
staff to ensure conformity with standards and preparing reports summarizing the
results to management. Id. In removing the appellant for inappropriate conduct,
the agency alleged that, on five occasions, she was connected to two interviewers
at overlapping times, yet filed reports indicating that she had monitored all of
both sessions. Id. at 32-35, 25-28. The agency stated that it had considered the
appellant’s past record, consisting of an oral admonishment she received in March
2001 for absence without leave and a written reprimand she received in February
2004 for taking an unauthorized break. Id. at 34.
¶3 On appeal, the appellant challenged the charged misconduct and argued that
the penalty was unreasonable. Id., Tab 1 at 6. She requested a hearing. Id. at 12.
¶4 Thereafter, the administrative judge issued an initial decision affirming the
agency’s action. Id., Tab 25, Initial Decision (ID) at 1, 10. In sustaining the
charge, the administrative judge found more credible the testimony of agency
3
officials, as to the propriety of what occurred, than the testimony of the appellant.
ID at 2-6. The administrative judge further found that a nexus existed between
the sustained charge and the efficiency of the service, ID at 6-7, and that removal
was a reasonable penalty, ID at 7-10.
¶5 On petition for review, the appellant challenges the administrative judge’s
findings on the merits and her credibility determinations and also raises an issue
related to discovery. Petition for Review (PFR) File, Tab 1 at 4-6. In addition,
the appellant argues that the administrative judge improperly relied on her past
record. Id. at 6. The agency has responded in opposition to the appellant’s
petition. Id., Tab 5.
¶6 The charge at issue is inappropriate conduct. Where, as here, an agency
employs a generic label for an adverse action charge, the Board looks to the
specifications to determine what conduct the agency is relying on as the basis for
its action. Boltz v. Social Security Administration, 111 M.S.P.R. 568, ¶ 16
(2009). In the five specifications supporting the charge, the agency alleged, and
provided evidence to show, that the appellant conducted multiple monitoring
sessions at the same time, that is, she was connected to two interviewers at
overlapping times but filed reports that she had fully monitored both sessions.
IAF, Tab 10 at 51-70. The administrative judge found that the appellant did not
dispute that she logged into two sessions at the same time but determined that she
offered various explanations for her actions. ID at 2. For example, early on, she
explained that, by her actions, she was endeavoring to find out if a particular
interviewer she had monitored before was present. ID at 2; IAF, Tab 10 at 47.
Later, in her reply to the notice of proposed removal, she indicated that she had
simply forgotten to log out of one session before conducting another evaluation.
ID at 3; IAF, Tab 10 at 29. And during the hearing, she testified that she was
never told that she could not monitor two interviews at the same time, and that
she did so by toggling between them. Hearing Compact Disc (CD).
4
¶7 The administrative judge rejected the appellant’s claim that she was not on
notice that she could not monitor two sessions at the same time or overlapping
times. In doing so, the administrative judge considered the testimony of two
agency officials that the agency does not allow the simultaneous monitoring of
two different interviews. ID at 4. The administrative judge also relied on an
official reprimand the appellant received on February 2, 2005, in part for failing
to follow proper work procedures by providing feedback to an interviewer
without having monitored the complete call. IAF, Tab 19 at 6-8. This reprimand
is one of two elements of the appellant’s past record that the agency indicated it
relied on in taking this action. 2 Prior to the conclusion of the hearing, the agency
requested to recall a witness to rebut the appellant’s testimony regarding her lack
of knowledge and, in lieu thereof, the administrative judge allowed the agency to
introduce documentary evidence. Several days after the hearing, the agency
offered the document in question to impeach the appellant’s credibility as to her
claim that she was not on notice that it was improper to “score” a session without
having monitored the entire session. Id. The appellant objected as the agency
had not otherwise submitted the document as part of the record in this case, id.,
Tab 20, but the administrative judge overruled the objection and accepted the
document, id., Tab 24. In assessing the appellant’s credibility, the administrative
judge found in the initial decision that, based on the written reprimand, and
contrary to her protestations, the appellant was on notice that the type of conduct
that led to her removal was unacceptable and, if repeated, would subject her to
future disciplinary action. ID at 6.
¶8 There is nothing improper in considering the appellant’s prior misconduct
in impeaching her credibility, if the misconduct had anything to do with her
2
The date of this action as indicated in the notice of proposed removal, February 2004,
appears to be in error, as does the recitation of the stated charge. IAF, Tab 10 at 34.
There were actually two charges in the reprimand. Id., Tab 19 at 6-8. The agency
acknowledged that there was, in fact, only one prior reprimand. Id., IAF, Tab 11 at 8.
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propensity for telling the truth. Carrick v. U.S. Postal Service, 67 M.S.P.R. 280,
283, aff’d, 69 F.3d 555 (Fed. Cir. 1995) (Table); Hillen v. Department of the
Army, 35 M.S.P.R. 453, 459 (1987). Here, the administrative judge considered
the appellant’s prior misconduct to impeach her credibility as to her denial that
she was on notice that the conduct that formed the basis for her removal was
wrong. That misconduct did bear on the appellant’s propensity to tell the truth
because, in scoring the session described in the prior misconduct, she
purposefully gave the impression that she had monitored the entire session when,
in fact, she had not. Under the circumstances, we find that the administrative
judge did not err in relying on the reprimand to impeach the appellant’s
credibility. 3 Moreover, in finding the appellant less credible than agency
witnesses, the administrative judge also considered the varied explanations that
she provided for her actions. Prior inconsistent statements are among the factors
appropriate for an administrative judge’s consideration when making a credibility
determination. Hillen, 35 M.S.P.R. at 458.
¶9 The Board will not disturb an administrative judge’s findings when the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions of credibility. See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 105-06 (1997); Broughton v. Department of
Health & Human Services, 33 M.S.P.R. 357, 359 (1987). The Board must give
deference to an administrative judge’s credibility determinations when they are
based, explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing, and can overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002).
¶10 Our review shows that, in finding that the agency proved the charge in this
case, the administrative judge complied with the requirements of Crosby and
3
We do not suggest, however, that the agency was thereby free to rely on the written
reprimand for other purposes in its defense of this action.
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Broughton in making detailed findings of fact and credibility determinations.
Although she did not make explicit credibility determinations based on witness
demeanor, she did so implicitly, finding that the appellant provided several
inconsistent explanations for her conduct and that she was on notice that her
actions were improper. We find, therefore, that the appellant has failed to make a
showing that the administrative judge made erroneous findings of material fact in
concluding that the agency proved the charge. 4
¶11 On review, the appellant raises a related discovery issue. PFR File, Tab 1
at 5-6. Specifically she argues that the agency failed to provide interviewer
INOTES (a computer-generated report of an interviewing session) and WEBCATI
(Computer Assisted Telephone Interviewing) Activity Reports for the monitoring
sessions at issue. The record reflects that, during discovery, the appellant
requested these documents regarding each of the ten interviewers referenced in
the notice of proposed removal (Request for Documents #7), and that, in
response, the agency referred her to the agency file which included the
WEBCATI reports for each of the instances of misconduct. IAF, Tab 11, Tab 10
at 51-70. In her motion to compel, the appellant appeared to argue that the
agency had failed to provide the INOTES. IAF, Tab 12. The administrative
judge ruled on other parts of the appellant’s motion but did not specifically
address Request for Documents #7. Id., Tab 15. The appellant asked that the
administrative judge reconsider her ruling, id., Tab 16, and, she did so, granting
the request to the extent that it related directly to the specifications of misconduct
4
As she did in her reply to the proposal notice, IAF, Tab 10 at 31, the appellant argues
on review that she was on various medications that affected her memory, PFR File, Tab
1 at 5. The administrative judge considered the claim, albeit in connection with her
penalty discussion, but found no showing that the misconduct at issue related to the
appellant’s conditions. ID at 9. Beyond her disagreement, the appellant has not shown
error in the administrative judge’s finding. To the extent the appellant makes this
argument to counter the administrative judge’s finding that she is not credible, her
assertion does not provide a basis for the Board to disturb the administrative judge’s
findings. Haebe, 288 F.3d at 1301.
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cited in the notice of proposed removal, id., Tab 18. At the hearing, agency
officials testified that the documents in question were unavailable as they were
routinely destroyed after 3 months. Hearing CD. The appellant argues that they
would have proven beyond a reasonable doubt whether or not she engaged in
inappropriate conduct, as charged. She has failed, however, to show that the
administrative judge erred in concluding that the agency proved the charge by
preponderant evidence in view of her finding that the WEBCATI Reports the
agency submitted show that, on the five occasions cited, the appellant connected
to the records of two interviewers at overlapping times, yet reported that she had
conducted two complete monitoring sessions. Based on our review, we find that
the appellant has not shown that the administrative judge abused her discretion
concerning this discovery issue. McCarthy v. International Boundary and Water
Commission, 116 M.S.P.R. 594, ¶ 15 (2011), aff’d, 497 F. App’x 4 (Fed. Cir.
2012).
¶12 The appellant challenges on review the administrative judge’s reliance, in
her penalty analysis, on the written reprimand the appellant received on
February 2, 2005. PFR File, Tab 1 at 6. As noted, the agency referred in the
proposal notice to this reprimand and an earlier oral admonishment. IAF, Tab 10
at 34. The administrative judge found that the agency properly relied on the
appellant’s past record in its penalty selection. ID at 9-10. The Board’s review
of a prior disciplinary action is limited to determining whether that action is
clearly erroneous, if the employee was informed of the action in writing, the
action is a matter of record, and the employee was permitted to dispute the
charges before a higher level of authority than the one that imposed the
discipline. Bolling v. Department of the Air Force, 9 M.S.P.R. 335, 339-40
(1981). Even if the written reprimand meets the Bolling criteria, it provided that
it would remain in the appellant’s Official Personnel File for a minimum of
1 year, but no longer than 3 years from January 28, 2005, the date of issuance.
IAF, Tab 19 at 7. Under the circumstances, reliance on the reprimand for
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purposes of enhancing the penalty was improper. Cantu v. Department of the
Treasury, 88 M.S.P.R. 253, ¶ 6 (2001).
¶13 Although the appellant did not specifically challenge the administrative
judge’s reliance in her penalty analysis on the March 2001 oral admonishment,
we find that it too was improper. It was not made a matter of record and we
therefore cannot determine if it met the Bolling criteria.
¶14 It remains to determine whether removal was proper as to the cited elements
of the appellant’s past record. 5 Prather v. Department of Justice, 117 M.S.P.R.
137, ¶ 35 (2011). Where, as here, all of the agency’s charges are sustained, the
Board will review the agency-imposed penalty only to determine if the agency
considered all the relevant factors and exercised management discretion within
the tolerable limits or reasonableness. Ellis v. Department of Defense,
114 M.S.P.R. 407, ¶ 11 (2010). In reviewing an agency-imposed penalty, the
Board must give due weight to the agency’s primary discretion in maintaining
employee discipline and efficiency, recognizing that the Board’s function is not
to displace management’s responsibility but to ensure that managerial discretion
has been properly exercised. The Board will modify or mitigate an
agency-imposed penalty only where it finds that the agency failed to weigh the
relevant factors or the penalty clearly exceeds the bounds of reasonableness. Id.
¶15 In assessing the appropriate penalty, the deciding official noted the
appellant’s 13 years of service. IAF, Tab 10 at 25. She nevertheless that the
appellant’s misconduct was serious in that it harmed the quality of the
interviewing and jeopardized the integrity of the data collected and that the
appellant’s actions evidenced a lack of respect for her position and a breach of
her reliability and trustworthiness. Id. In addition, the deciding official testified
that she lacked confidence that the appellant would refrain from repeating the
misconduct when she was not being closely monitored. Hearing CD.
5
The deciding official did not specifically indicate in her decision letter that she had
considered the appellant’s past record. IAF, Tab 10 at 25-26.
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¶16 Under the circumstances, we find that the deciding official considered the
relevant factors in determining the penalty. The appellant engaged in serious
misconduct that caused the agency to lose confidence in her integrity and
judgment, and the deciding official reasonably determined that those factors
outweighed any mitigating factors, including her length of service. See Jinks v.
Department of Veterans Affairs, 106 M.S.P.R. 627, ¶ 17 (2007) (in assessing the
appropriateness of the agency’s penalty selection, the most important factor is the
nature and seriousness of the misconduct and its relation to the employee’s duties,
position, and responsibilities, including whether the offense was intentional or
was frequently repeated). The Board’s role is not to displace the judgment of
senior agency managers who must have confidence that employees will act
appropriately at all times. Id.; Batts v. Department of the Interior, 102 M.S.P.R.
27, ¶ 11 (2006).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
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and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website. Additional information is available at the court's
website, www.cafc.uscourts.gov. Of particular relevance is the court's "Guide for
Pro Se Petitioners and Appellants," which is contained within the court's Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.