The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY SAHADEO, DOCKET NUMBER
Appellant, DC-0752-13-0393-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 26, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.
Shari L. Oehrle, Pensacola, Florida, 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 the appellant’s removal. 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 interpretation of statute or regulation or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 Effective March 8, 2013, the agency removed the appellant from his
position as a GS-11 Contract Specialist (Intern) with the agency’s Acquisition
Intern Program at the Naval Acquisition Career Center (NACC) based on a charge
of dishonest conduct. Initial Appeal File (IAF), Tab 7 at 9-13. In support of the
charge, the agency alleged that: the appellant requested and obtained tuition
assistance through the agency’s Acquisition Workforce Tuition Assistance
Program (AWTAP) 2 for three courses he did not take; and he attempted to
2
AWTAP allows members of the agency’s civilian acquisition workforce to receive
tuition assistance for meeting education standards for certification in their designated
career field. IAF, Tab 11 at 21. To participate in the program, an employee must create
an online Educational Development Plan (EDP) through the agency’s electronic
Director Acquisition Career Management System (eDACM), which is the agency’s
official repository for acquisition records. Id. at 21, 28. After completing his EDP, the
employee must obtain his supervisor’s endorsement and then submit the EDP to an
eDACM support specialist a minimum of 30 calendar days in advance of the first course
start date. Id. Once his EDP is approved, the employee must review the EDP to ensure
that course information is accurate and then request a Standard Form (SF) 182, funding
document, via eDACM. Id. at 29. Notification of an approved SF-182 is emailed to the
employee, who then registers for the course and provides the school with the SF-182.
3
mislead NACC by providing fictitious grades for those courses, knowing that he
had not taken them. IAF, Tab 9 at 3-7.
¶3 In its notice of proposed removal, the agency also set forth a narrative in
support of the charge, which stated as follows: In April 2009, the appellant
enrolled in three college courses with the Florida Institute of Technology (FIT),
which commenced on April 27, 2009—Managerial Accounting (MGT 5001),
Contract and Sub-Contract Formulation (MGT 5217), and Procurement and
Contract Management (MGT 5211). IAF, Tab 9 at 3. The appellant requested
ATWAP funding for these courses; however, he was advised that the courses
were not eligible for funding because they commenced before the approval of
funding. Id.
¶4 The notice of proposed removal further also stated that on June 30, 2009,
the appellant requested tuition assistance for three college courses with FIT that
commenced on August 24, 2009, and ended on December 4, 2009—Contract
Management Research Seminar (MGT 5220), Corporate Finance (MGT 5002),
and Cost Principles, Effectiveness and Control (MGT 5214). IAF, Tab 9 at 3.
The appellant’s request was approved the following day, and funds totaling
$4,590 were committed to, and obligated under, three separate document control
numbers (DCNs). Id. at 3-4.
¶5 In its proposed removal letter, the agency further alleged that in his email
response to NACC’s December 9, 2011 request for grades for MGT 5220, MGT
5002, and MGT 5214, the appellant stated that he received an A in MGT 5220, a
B in MGT 5002, and an A in MGT 5214. IAF, Tab 9 at 4. NACC then requested
additional information to verify these grades. Id. On December 13, 2011, the
Id. The school will bill the agency, which remits payment directly to the school. Id. at
38. Within 45 days after completing a course, the employee must provide the agency
with documentation showing the grade earned. Id. at 30. If the course is a graduate
level course and the employee fails to earn a B grade or better, the employee must
reimburse the agency. Id.
4
appellant provided a website for an academic history; however, the website did
not contain information for the approved AWTAP funded courses, i.e., MGT
5220, MGT 5002, and MGT 5214. Id. NACC then asked the appellant to provide
an invoice from FIT for these courses. Id. In response, the appellant provided a
copy of a collection letter stating that he was indebted to Williams and Fudge for
a student tuition loan of $4,968.65. Id. NACC then contacted FIT to acquire the
invoices, and FIT provided an invoice in the amount of $4,590 for Summer Term
2009, which referenced the DCNs for MGT 5220, MGT 5002, and MGT 5214.
Id.
¶6 Lastly, the agency alleged in the proposed removal notice that on
January 13, 2012, the appellant admitted to two people that he had not previously
taken MGT 5220, MGT 5002, and/or MGT 5214, and stated that he was preparing
to take those courses in the current semester. IAF, Tab 9 at 4.
¶7 The appellant filed a Board appeal challenging his removal and requested a
hearing. IAF, Tab 1 at 2-3. He raised affirmative defenses of discrimination
based on his race and national origin, and retaliation for his prior protected equal
employment opportunity activity. Id. at 6, Tab 18 at 5.
¶8 After a hearing, the administrative judge issued an initial decision affirming
the appellant’s removal. IAF, Tab 28, Initial Decision (ID) at 1, 37. The
administrative judge found that the agency proved the charge by preponderant
3
evidence, ID at 3-27, and that the penalty of removal was reasonable, ID at
34-36. The administrative judge also found that the appellant failed to prove his
affirmative defenses. ID at 27-34.
3
In the initial decision, the administrative judge noted that the parties had stipulated
that there is a nexus between the alleged misconduct and the efficiency of the service.
ID at 3 n.2 (citing IAF, Tab 20 at 6).
5
ANALYSIS
The administrative judge properly affirmed the agency’s removal action.
¶9 In finding that the agency proved the misconduct as alleged in the notice of
proposed removal, the administrative judge summarized the hearing testimony
and documentary evidence relevant to the charge, fully considered the credibility
of the witnesses’ testimony under the pertinent factors set forth in Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987), and explained why he
found the agency’s witnesses more credible than the appellant. ID at 6-27.
Specifically, the administrative judge found the version of events set forth by
agency witnesses C.D., D.N., J.J., and D.T. 4 to be “credible and straightforward.”
ID at 17. Based on his close observation of these witnesses’ demeanor, the
administrative judge found their statements “direct, sincere, and consistent with
their prior statements of record.” ID at 17. The administrative judge further
found their testimony “internally consistent and corroborated by the testimony of
other agency witnesses and the documentary evidence of record.” ID at 17. In
addition, the administrative judge “did not detect any improper bias” and he
found that “the appellant failed to introduce any evidence to support a finding
that these individuals had a legitimate motive to fabricate their testimony.” ID at
17. In that regard, the administrative judge noted that apart from their interaction
with the appellant via telephone and email, none of these witnesses knew the
appellant nor did they have any reason to alter their version of events to harm
him. ID at 17 (citing Hearing Transcript (HT) at 72-73). Therefore, the
administrative judge credited their version of events. ID at 17.
¶10 By contrast, the administrative judge found the appellant’s testimony
“incredible.” ID at 18. Based on his close observation of the appellant’s
4
C.D. is a support specialist at the AWTAP help desk, D.N. and J.J. are members of the
eDACM support team, and D.T. is the Chief of the NACC’s Financial Management
Division. See ID at 7-9, 12. The administrative judge also found that the testimony of
G.B., a former support specialist at the AWTAP help desk, was “credible, reliable, and
consistent.” ID at 18 n.21.
6
demeanor, the administrative judge found the appellant “somewhat disingenuous,
insincere, and willing to alter his testimony to achieve the desired end.” ID at 18.
The administrative judge further found that the appellant made a number of
claims that are contradicted by the weight of the credible evidence, including his
claims that: (1) when he created his EDP in 2009, he did not make any of the
changes reflected on the eDACM revision history 5 between April and June 2009,
and that those changes were instead made by G.B.; (2) he never requested any
funding for the courses at issue in this appeal through eDACM and never received
an email notification that the funding requests had been approved; and (3) he
never told C.D., D.N., or J.J. during their telephone conversations in December
2011 that he had taken MGT 5220, MGT 5002, or MGT 5214. ID at 18.
¶11 Regarding the appellant’s claim that G.B., not he, made the changes to his
EDP between April and June 2009, the administrative judge found that G.B.
credibly testified that she could not have made the changes to the appellant’s EDP
reflected on the revision history because support specialists did not have access to
the EDPs and “the students had to actually go in and make any changes.” ID at
18 (citing HT at 385-410). The administrative judge also noted that G.B., C.D.,
and J.J. stated that the revision history tracks changes made by the student,
whereas actions taken or noted by the registrar or support specialist are reflected
on the registrar’s notepad. ID at 18 (citing HT at 17-19, 271-72, 388-90). Thus,
as the administrative judge found, the revision history in this case shows the
appellant made the changes to his EDP during this time period. ID at 18.
¶12 As for the appellant’s claim that he never requested any funding through
eDACM for the courses at issue, the administrative judge found that all of the
agency’s witnesses flatly refuted the appellant’s contention that G.B. generated
those funding requests and credibly testified that only the student/user could
5
The administrative judge explained that when an employee makes changes to his EDP,
the changes are recorded in an electronic revision history, which tracks the changes in
eDACM for future reference. ID at 6 n.5 (citing HT at 20-21, 272, 394-98).
7
generate the funding request through eDACM. ID at 19 (citing HT at 30-31,
54-56, 82-84, 263-72, 410-11). The administrative judge further found that, in
light of the fact that the funding requests at issue were made on June 30, 2009,
the appellant appeared to be asserting that G.B. went back into his EDP in late
June 2009 and inexplicably made all of these changes unilaterally on her own
initiative. ID at 19 n.24. The administrative judge found this claim “implausible
on its face.” ID at 19 n.24 In addition, the administrative judge noted that J.J.
testified that the electronic records prove that the appellant not only generated the
requests for funding but printed them out within 15 days after eDACM notified
him that these requests had been approved. ID at 19 (citing HT at 282-84). In
sum, the administrative judge found that “the overwhelming record evidence
prov[es] that the appellant repeatedly utilized eDACM, built his EDP and
requested tuition assistance via the relevant SF-182 funding requests . . . .” ID at
26.
¶13 Regarding the appellant’s claim that he never told C.D., D.N., or J.J. during
their telephonic conversations in December 2011 that he had taken MGT 5220,
MGT 5002, or MGT 5214, the administrative judge found that all of the agency’s
witnesses provided specific testimony to dispute this claim. Specifically, the
administrative judge noted that: C.D. testified that she expressly identified the
three courses at issue when she spoke with the appellant in December 2011 and
he specifically verified and confirmed that he had taken these courses; D.N.
testified that the appellant had told her during their conversation in December
2011 that he had taken the courses at issue; and J.J. testified that the appellant
had told him in December 2011 that he had taken the three courses identified in
the SF-182s. ID at 20 (citing HT at 25, 51-52 (C.D.’s testimony); HT at 86-89,
108, 123-28 (D.N.’s testimony); and HT at 278-79, 284-85 (J.J.’s testimony)). In
addition, the administrative judge found that C.D.’s testimony was corroborated
by her January 23, 2012 memorandum of record and by J.J.’s testimony. ID at 20
(citing IAF, Tab 10 at 14-15). Similarly, he found that D.N.’s testimony was
8
corroborated by her written statement of record. ID at 20 (citing IAF, Tab 11 at
4).
¶14 The administrative judge further found that a December 12, 2011 email the
appellant sent D.N. in response to her request for grades, in which he reported
grades for MGT 5220, MGT 5002, and MGT 5214, is consistent with D.N.’s
testimony that the appellant had told her he had taken the courses at issue. ID at
20 (citing IAF, Tab 10 at 23). The administrative judge considered the
appellant’s testimony that his email response to D.N., in which he provided
grades for courses he had not taken, was simply a mistake inasmuch as he
reported these grades off the top of his head without access to a transcript. ID at
20 (citing HT at 306-09, 379-81). The administrative judge noted that, in support
of this argument, the appellant relied on a transcript he sent to J.J. on December
13, 2011, 6 which indicated that he had earned a B in MGT 5001, a B in MGT
5211, and an A in MGT 5217. ID at 20; see IAF, Tab 10 at 26. The
administrative judge further noted that the appellant contended that those are the
grades and courses he meant to report to D.N. in his email of December 12, 2011.
ID at 21.
¶15 The administrative judge found that the documentary evidence the appellant
relied on to support his claim, in a vacuum, is persuasive; however, J.J. credibly
refuted the appellant’s assertion that he sent D.N. grades for classes he had not
taken in error. ID at 21. In particular, the administrative judge noted, J.J.
testified that the grades he had requested from the appellant were distinct from
the grades requested by D.N., and he indicated that the appellant understood that
6
J.J. was assisting the appellant because, as of January 19, 2010, he could no longer
access his EDP via eDACM “due to overdue grades.” IAF, Tab 9 at 24; ID at 7 n.7
(citing HT at 43-44). Accordingly, on December 12, 2011, J.J. asked the appellant to
provide him with an informal grade report or unofficial transcript identifying the
school, course number, course name, grade, and number of credits awarded. IAF, Tab
10 at 22. On December 13, 2011, the appellant sent J.J. the transcript with grades for
MGT 5001, MGT 5211, and MGT 5217 in response to J.J.’s request. Id. at 26.
9
he was seeking grades for the three courses AWTAP had not funded in 2009 (i.e.,
MGT 5001, 7 MGT 5211, and MGT 5217) because these were the three courses for
which grades had to be provided in order to remove the appellant’s EDP from a
suspended status. ID at 21 (citing HT at 268-75), 21 n.26 (citing HT at 275-77,
280-85). J.J. also testified that the appellant could not have been confused under
the circumstances in light of his earlier telephonic conversation with the appellant
and the context of the agency’s request. ID at 21 (citing HT at 268-70, 275-85).
In addition, the administrative judge noted that D.N. and D.T. testified that the
appellant’s suggestion that he was confused and/or innocently mistaken under the
circumstances is simply implausible. ID at 21. The administrative judge found
these witnesses credible and rejected the appellant’s argument that he provided
D.N. grades for courses he had not taken by mistake. ID at 21 n.28.
¶16 The appellant argues on review that the agency’s witnesses’ version of the
facts supported his version of the facts and that witness testimony did not play a
significant role in resolving this appeal. Petition for Review (PFR) File, Tab 1 at
16-18. He contends that it was therefore unnecessary for the administrative judge
to make credibility findings. Id. at 17-18.
¶17 We find the appellant’s argument unpersuasive. As discussed above, the
parties provided conflicting testimony regarding key issues in this appeal,
including whether the appellant requested funding for classes that he did not take.
This conflicting testimony created credibility issues, which the administrative
judge was required to, and did, resolve.
¶18 In his petition for review, the appellant challenges the administrative
judge’s factual findings and credibility determinations, and he reasserts many of
the same arguments that the administrative judge rejected in his thorough and
well-reasoned initial decision. For example, the appellant reiterates his
arguments below that: he did not request funding for the three classes at issue in
7
The initial decision incorrectly states that J.J. indicated in his testimony that he was
seeking a grade for MGT 4207, rather than MGT 5001. ID at 21 n.26.
10
this appeal, PFR File, Tab 1 at 8-9, and he provided D.N. with grades for these
courses in error but corrected this mistake the following day, when he sent J.J. his
academic record, id. at 22. The appellant also argues on review that the
administrative judge erred in crediting G.B.’s testimony that she did not make the
changes to the appellant’s EDP reflected in the revision history, id. at 18, and in
finding that agency witnesses C.D., D.N., and J.J. credibly testified that the
appellant told them during telephone conversations in December 2011 that he had
taken the courses at issue in this appeal, id. at 19.
¶19 The appellant has not shown a sufficiently sound reason for overturning the
administrative judge’s thorough and explained credibility findings. Here, the
administrative judge considered the relevant Hillen factors and made explained
demeanor based credibility findings and, thus, we defer to his credibility
determinations. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.
Cir. 2002). Further, the initial decision reflects that the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions. Thus, we discern no reason to reweigh the evidence or
otherwise disturb the administrative judge’s explained finding that the agency
proved the misconduct as alleged in the notice of proposed removal. See Crosby
v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb
the administrative judge’s findings where the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions).
We discern no basis for disturbing the administrative judge’s finding that the
appellant failed to prove his affirmative defenses.
¶20 The appellant’s argument on review regarding his affirmative defenses
consists of the following statement in the “Conclusion” portion of his petition for
review: “[t]he appellant renews and incorporates his arguments contained in his
previously filed Closing Brief about [the Director of the NACC’s Career
Management Group’s] retaliation and discrimination. Unfortunately, the work
11
[sic] limit precluded him from addressing those specifically.” PFR File, Tab 1 at
26.
¶21 The appellant’s does not identify any error in the initial decision regarding
his affirmative defenses and we discern none. Accordingly, we find no basis for
disturbing the administrative judge’s findings that the appellant failed to prove
his affirmative defenses. 8
We discern no basis for disturbing the administrative judge’s finding that removal
is a reasonable penalty.
¶22 The appellant does not challenge the administrative judge’s finding that the
penalty of removal is reasonable. In any event, we have reviewed this finding on
review and discern no reason for disturbing it.
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
8
To the extent that the appellant claims that he was precluded from making a
substantive argument regarding his affirmative defenses because of the word limitation
on petitions for review set forth in 5 C.F.R. § 1201.114(h), we find such an argument
unavailing. That regulation specifically provides that a party may request leave to file a
pleading that exceeds the length limitations set forth therein. The appellant, who is
represented by experienced counsel, failed to do so.
12
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
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
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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.