The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOUGLAS A. DALE, DOCKET NUMBER
Appellant, CH-0752-10-0300-I-8
v.
DEPARTMENT OF THE TREASURY, DATE: September 18, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jason P. Matthews, Esquire, Dayton, Ohio, for the appellant.
Eileen R. Jimenez, Esquire, Chicago, Illinois, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 Following the appellant’s criminal conviction on multiple counts of
bankruptcy fraud and making false statements, misconduct which occurred
off-duty and, for the most part, before his agency employment began in 2005, the
agency removed the appellant for conduct unbecoming an Internal Revenue
Service (IRS) agent. Dale v. Department of the Treasury, MSPB Docket No.
CH-0752-10-0300-I-2, 2 Refiled Appeal File (I-2 RAF), Tab 18, Subtabs 4d,
4h-4k. After holding a hearing, the administrative judge found that the agency
proved its charge, established a nexus between the appellant’s misconduct and the
efficiency of the service, and chose a penalty within the tolerable bounds of
reasonableness. Dale v. Department of the Treasury, MSPB Docket No.
CH-0752-10-0300-I-8, Refiled Appeal File, Tab 18, Initial Decision (ID). The
administrative judge further found that the appellant failed to establish his
affirmative defenses of: harmful procedural error; sex discrimination; marital and
parental discrimination; political and religious discrimination; and reprisal for
whistleblowing. ID at 5-8.
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This appeal was dismissed without prejudice and refiled seven times due to the
appellant’s incarceration and his post-conviction motions.
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¶3 In his timely filed petition for review, the appellant argues that the
administrative judge erred in finding nexus and that the penalty was not
reasonable in the light of relevant mitigating Douglas factors. Petition for
Review (PFR) File, Tab 1. He does not challenge the administrative judge’s
adjudication of his affirmative defenses. Id. The agency responded in
opposition, and the appellant filed a reply to the agency’s response. PFR File,
Tabs 3, 4.
¶4 The appellant argues on review that because his criminal conviction was
based on conduct which occurred prior to and during his first year of agency
employment, it did not adversely impact the efficiency of the service. PFR File,
Tab 1 at 3. He asserts that the only possible nexus is purely speculative and
involves the agency’s “misguided perception that [he] was not trustworthy.” Id.
at 4. However, the appellant was found guilty of bankruptcy fraud and making
false statements, see I-2 RAF, Tab 18, Subtabs 4i-4k, and because he was
“employed by an agency which must maintain public confidence in its image of
integrity, depending as it does essentially on voluntary compliance of the public,”
and in a position involving contact with the public, the fraudulent and dishonest
nature of his misconduct is sufficient to establish a nexus with the efficiency of
the service, see, e.g., Fike v. Internal Revenue Service, 10 M.S.P.R. 113, 116-17
(1982).
¶5 As to the penalty, where, as here, both of the agency’s charges are
sustained, the Board reviews the penalty only to determine whether the agency
considered all the relevant factors and exercised management discretion within
the tolerable limits of reasonableness. See Ellis v. Department of Defense,
114 M.S.P.R. 407, ¶ 11 (2010). 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 its proper exercise. Id. The Board will mitigate a penalty only where the
Board finds that the agency did not weigh the relevant factors or that the penalty
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clearly exceeds the bounds of reasonableness. Id. In assessing the
appropriateness of the agency’s choice of penalty, the most important factor is the
nature and seriousness of the misconduct and its relationship to the employee’s
duties, position, and responsibilities. Id. (citing Jinks v. Department of Veterans
Affairs, 106 M.S.P.R. 627, ¶ 17 (2007)); see Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305-06 (1981).
¶6 The appellant argues that he was in a turbulent time of his life when the
misconduct at issue occurred and that he was suffering from depression stemming
from childhood abuse. PFR File, Tab 1 at 5. He contends that despite his
conviction, his work record and lack of subsequent misconduct demonstrates that
he is a good candidate for rehabilitation and that the agency’s choice of penalty is
unreasonable. Id. Nevertheless, the record reflects that the deciding official
explicitly considered these factors, but determined that the seriousness of the
appellant’s misconduct and its relationship to his duties and the agency’s mission
outweighed them and caused her to lose confidence in the appellant’s integrity
and judgment. ID at 9-10; see, e.g., Ellis, 114 M.S.P.R. 407, ¶ 11. We agree
with the administrative judge that the appellant’s criminal conviction for
bankruptcy fraud and making false statements directly relates to his position as an
IRS agent and that the appellant’s removal under these circumstances does not
exceed the bounds of reasonableness. ID at 10-11.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
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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
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
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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. 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
Other Claims: Judicial Review
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. The court
of appeals must receive your petition for review within 60 days after the date of
this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you
choose to file, be very careful to file on time.
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, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, 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 Federal Circuit. 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.