The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH SHAW, DOCKET NUMBER
Appellant, NY-0752-14-0128-I-1
v.
DEPARTMENT OF VETERANS DATE: August 28, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kenneth Shaw, Poughkeepsie, New York, pro se.
Jack DiTeodoro, Brooklyn, New York, 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
mitigated his removal penalty to a 30-day suspension. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant, a Housekeeping Aid, filed a petition for review of an initial
decision that sustained a charge of verbal abuse of a patient, did not sustain a
charge of threatening a patient, found that the appellant failed to prove his
affirmative defenses, and mitigated the removal penalty to a 30-day suspension.
Petition for Review (PFR) File, Tab 3. In his petition for review, the appellant
argues that the administrative judge erred in sustaining the charge that he verbally
abused a patient because the agency failed to prove the charge by preponderant
evidence. Id. at 8-9. 2 Specifically, the appellant reasserts the argument he made
on appeal below denying that he referred to the terminally ill patient as a
“[expletive] [expletive],” and he challenges the administrative judge’s credibility
determinations and factual findings. PFR File, Tab 3 at 9-11; Initial Appeal File
(IAF), Tab 1 at 10. The appellant argues that the administrative judge should not
have relied on the unsworn and unsigned statements of the patient involved in the
incident because the agency coerced the patient into making the statements, and
the agency failed to have the patient testify at the hearing. Id. at 9. The appellant
2
In deciding this matter, the Board considered the corrected petition for review
submitted by the appellant. See PFR File, Tab 3.
3
also disputes the administrative judge’s demeanor-based finding that a nurse
employed by the agency credibly testified that she heard the appellant call the
patient a “[expletive] [expletive]” during the verbal altercation. Id. at 9-10.
¶3 Although the appellant admits that he used the word “[expletive]” during
the incident, he argues the administrative judge based her decision on an
erroneous interpretation of statute or regulation. Id. at 9, 11. He argues that,
because he apologized to the patient immediately after the incident, his conduct
did not fall within the Wikipedia definition of verbal abuse. Id. at 11. The
appellant also argues, among other things, that the penalty was unreasonable. Id.
The agency did not respond to the appellant’s petition for review or file a
cross-petition challenging the administrative judge’s findings that the agency
failed to prove the charge of threatening a patient and mitigating the removal
penalty to a 30-day suspension for the proven charge of verbal abuse of a patient.
Initial Decision (ID) at 8, 14.
¶4 While the appellant does not agree with the administrative judge’s findings
and conclusions, we discern no reason to reweigh the evidence or substitute our
assessment of the record evidence for that of the administrative judge. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings when the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same). The appellant’s mere disagreement with the
administrative judge’s findings and credibility determinations does not warrant
full review of the record by the Board.
¶5 The Board must defer 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; the Board may 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). Here, the
4
administrative judge thoroughly reviewed the hearing testimony and specifically
cited to Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), in setting
forth her credibility determinations. ID at 4-5. The administrative judge credited
the evidence submitted by the agency, which included the hearing testimony of
the nurse who overheard part of the altercation and the written statements of the
patient regarding the appellant’s use of profanity, as more plausible and credible
than the appellant’s assertions that he did not call the patient a “[expletive]
[expletive].” Id.
¶6 In finding the nurse’s testimony credible, the administrative judge gave
great weight to her demeanor at the hearing, finding that her testimony was
straightforward, unequivocal, and consistent with her prior written statement and
the statement of the patient involved in the incident. ID at 5. The administrative
judge found that the appellant’s denial that he used the word “[expletive]” was
not credible based on his demeanor and other evidence of record. ID at 5. The
administrative judge also found that the appellant’s admission that he used the
word “[expletive]” directed towards the patient “violated the agency’s workplace
violence prevention policy as such language is clearly unkind, rude, and verbally
inappropriate.” ID at 5.
¶7 We find that the administrative judge thoroughly explained her
demeanor-based credibility determinations in the initial decision, and we discern
no reason to disturb her well-reasoned findings. See Crosby, 74 M.S.P.R.
at 105-06. Although the appellant alleges that the administrative judge was
biased in considering the appellant’s demeanor at the hearing, he has not shown
that the administrative judge’s comments or actions evidence “a deep-seated
favoritism or antagonism that would make fair judgment impossible.” PFR File,
Tab 3 at 7; see Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).
¶8 We further find that the administrative judge was entitled to consider the
unsworn, unsigned statements of the terminally ill patient involved in the
5
incident, regardless of the fact that the patient did not testify at the hearing. In
response to an agency interview about the incident, the patient stated in relevant
part that, after the appellant woke him up by banging a trash can on his door, the
appellant called him a “[expletive] [expletive].” See IAF, Tab 6, Subtab 4d
at 5-6. The admissibility of evidence is a procedural matter that falls “within the
sound discretion of the Board and its [administrative judges].” Kewley v.
Department of Health & Human Services, 153 F.3d 1357, 1364 (Fed. Cir. 1998).
It is well settled that hearsay evidence “may be used in Board proceedings and
may be accepted as preponderant evidence even without corroboration if, to a
reasonable mind, the circumstances are such as to lend it credence.” Id.
¶9 Here, the administrative judge found that the patient’s statement was
consistent with the hearing testimony and prior written statement of the nurse
who overheard the inappropriate comments underlying the verbal abuse charge.
ID at 4-5; see IAF, Tab 6, Subtab 4d at 1-2, 5-6, Subtab 4e at 1. Under the
circumstances, we find that the administrative judge reasonably considered the
patient’s unsworn and unsigned statement in finding that the agency proved the
verbal abuse charge. ID at 4-5. Although the appellant further argues that the
administrative judge failed “to carefully examine all statements before making
her judgment,” we find that the administrative judge’s failure to mention all of
the evidence of record does not mean that she did not consider it in reaching her
decision. 3 PFR File, Tab 3 at 12; Marques v. Department of Health & Human
Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
(Table).
3
In addition, the appellant argues that the administrative judge relied on a misleading
statement written by the agency, and she never considered the appellant’s statement
denying that he called the appellant a “[expletive] [expletive]” and admitting that he
told the patient to “get the [expletive] out of my face.” PFR File, Tab 3. However, the
administrative judge specifically referenced the appellant’s statement in the initial
decision, and the appellant offers no evidence to support his argument that the
administrative judge based her decision on a misleading agency statement. See ID at 4.
6
¶10 On review, the appellant also challenges the administrative judge’s findings
that: (1) the appellant failed to prove his affirmative defense of religious
discrimination; (2) the agency proved the requisite nexus between the sustained
charge and the efficiency of service; and (3) mitigating the removal to a 30-day
suspension was reasonable. PFR File, Tab 3 at 7, 13; see ID at 12, 14. In support
of his petition, the appellant argues that he established a prima facie case of
religious discrimination and the administrative judge erroneously found that the
agency articulated a nondiscriminatory reason for its action. PFR File, Tab 3
at 12-13. He argues that the agency’s decision to remove him, despite his lack of
prior discipline, was so egregious and unjustified that “[t]he discrimination is
illegal on its face.” Id. at 12. The appellant also argues, among other things, that
the agency failed to prove nexus, and the proper penalty is “a written verbal
counseling or nothing.” Id. at 11, 13.
¶11 We disagree with the appellant’s arguments on review. Regarding the
appellant’s affirmative defense of religious discrimination, the administrative
judge found that the charged misconduct was sufficient to establish a
nondiscriminatory reason for the agency’s removal action and proceeded to
determine the ultimate question of whether the appellant met his overall burden
on this issue. ID at 10. The administrative judge found that the appellant failed
to show by preponderant evidence that the agency discriminated against him
based on his religion because the deciding official presented unrebutted testimony
that he was unaware of the appellant’s Muslim religion, and the appellant
submitted no testimony in support of his religious discrimination claim at the
hearing. 4 ID at 11. Although the appellant disagrees with the administrative
4
In support of his affirmative defense of religious discrimination, the appellant stated
that his supervisors must have known that he is a Muslim. PFR File, Tab 13 at 3. He
alleged that the agency ignored his complaints to management “regarding statements
made against his Muslim religion,” and that one of his former managers referred to him
as “Malcolm X” several times. Id. He also alleged that another manager said that she
7
judge’s findings, the appellant submits no evidence on review as proof that the
agency discriminated against him based on his religion. We therefore find no
reason to disturb the administrative judge’s finding that the appellant failed to
prove his affirmative defense of religious discrimination.
¶12 Moreover, we find no merit in the appellant’s argument that the agency
failed to prove nexus. PFR File, Tab 3 at 13. An agency must establish that there
is a nexus between the proven offense and the efficiency of the service. See
5 U.S.C. § 7513(a). One of the ways that an agency may establish nexus is by
showing that the employee’s conduct interfered with or adversely affected the
agency’s mission. See Dixon v. Department of Commerce, 109 M.S.P.R. 314,
¶ 14 (2008). Verbal abuse of a patient adversely affects the agency’s mission
here of providing quality health care. See Byers v. Department of Veterans
Affairs, 89 M.S.P.R. 655, ¶ 23 (2001). Accordingly, we agree with the
administrative judge’s finding that the agency proved the requisite nexus between
the sustained charge and the efficiency of service. See ID at 11-12.
¶13 We further find that the appellant’s misconduct was serious and warrants
discipline. The administrative judge found that a 30-day suspension is a
reasonable penalty for the proven charge, even though the appellant apologized to
the patient and had good performance ratings and no prior discipline. ID
at 13-14. In reaching his decision, the administrative judge properly balanced the
seriousness of the proven misconduct against the mitigating factors and found
that maximum reasonable penalty for the sustained charge was a 30-day
suspension. 5 ID at 13-14. We find that the appellant’s arguments on review
smelled fish and stated that it must be the appellant “and his [Muslim] religion using
the microwave.” Id.
5
On review, the appellant also expresses his belief that the administrative judge should
have advised the agency to review the labor/management agreement before the hearing
on his appeal. PFR File, Tab 3 at 12. He argues that this “may have ensured that the
appellant was being treated fairly and equitably before the agency proceeded to the
adverse action,” and “helped to ensure agency contract compliance.” Id. Nonetheless,
8
present no reason to disturb the administrative judge’s penalty determination. We
therefore deny the petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 request 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, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
the appellant does not demonstrate the harmfulness of the purported errors by showing
that the errors were of sufficient weight to warrant outcome different from that of the
initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
(1984) (an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision); Karapinka v. Department of
Energy, 6 M.S.P.R. 124, 127 (1981) (the administrative judge’s procedural error is of
no legal consequence unless it is shown to have adversely affected a party’s substantive
rights).
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representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.