Winfred Shepard v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WINFRED SHEPARD, DOCKET NUMBER

Appellant, CH-0752-13-4055-I-1

v.

DEPARTMENT OF VETERANS DATE: February 25, 2015

AFFAIRS,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Ariel E. Solomon, Esquire, Albany, New York, for the appellant.

Gina M. Ozelie, Esquire, Milwaukee, Wisconsin, 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 his removal based on a charge of careless or negligent performance of

duties. Generally, we grant petitions such as this one only when: the initial

decision contains erroneous findings of material fact; the initial decision is based

1

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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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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 expressly modified by

this Final Order to address the medical evidence presented at the hearing, we

AFFIRM the initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant worked as a Field Examiner based in the agency’s

Milwaukee, Wisconsin hub office. Initial Appeal File (IAF), Tab 6 at 20. The

appellant worked out of his home and spent most of his time in the field

conducting field examinations. IAF, Tab 16 at 11. A field examination may

involve a home visit to verify the welfare of individuals who received Veterans

Administration benefits and were declared incompetent due to legal disability,

mental disability, physical disability, or minority, and to ensure the adequacy of

living conditions. IAF, Tab 6 at 184.

¶3 In March 2013, the fiduciary for a veteran contacted the agency regarding a

letter he received from the agency. Id. at 100. The agency representative

informed the fiduciary that a field exam on file stated that the appellant had

recently visited the veteran and spoken to the fiduciary by phone the same day.

Id. The fiduciary informed the representative that on the date alleged the

appellant had not spoken with him or visited the veteran. Id. The agency

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subsequently interviewed the appellant, and he admitted that he had completed

reports documenting visits with veterans whom he had not personally seen. Id. at

70. The agency then proposed to remove the appellant based on two charges:

careless or negligent performance of duty and unauthorized use of government

property. Id. at 51-53. The charge of careless or negligent performance of duty

contained four specifications, each specification a separate incident where the

appellant was alleged to have conducted a field visit but did not. Id. at 51-52.

The appellant provided both written and oral replies to the deciding official on

the charges. Id. at 36-41. The deciding official sustained only the four

specifications of the careless or negligent performance of duties charge; he did

not sustain the unauthorized use of government property charge. 2 Id. at 22-24.

Based on the sustained charge and consideration of the mitigating and

aggravating factors, the deciding official directed the appellant’s removal

effective July 17, 2013. Id.

¶4 The appellant initiated a Board appeal challenging his removal. IAF, Tab 1

at 3. During the pre-hearing conference, the appellant also alleged two due

process violations by the agency. IAF, Tab 18 at 3. The appellant alleged that

the deciding official sustained the charge based on the appellant’s intent to falsify

documents and not negligence. Id. The appellant also alleged that he did not

receive all of the agency’s documents considered in his removal process. Id. The

administrative judge conducted a hearing and issued an initial decision which

sustained the agency’s removal action. IAF, Tab 32, Initial Decision (ID) at 1,

15. She found that the agency proved that the appellant engaged in careless or

negligent performance of his job duties. ID at 7-8. She found that the appellant’s

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The charge brought by the agency is listed as careless or negligent performance of

duty in the proposal notice, but listed as careless and negligent performance of duties in

the decision letter. IAF, Tab 6 at 22, 51. The administrative judge also uses both terms

in her in itial decision. ID at 1, 3. We find that the agency proved its charge under

either wording and will reference the charge as careless or negligent performance in th is

decision.

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failure to conduct the site visits prevented the appellant from determining whether

the beneficiaries’ welfare needs were being met, placing the four individuals at

risk. ID at 5-6. The administrative judge also found no due process violation or

harmful error, as the deciding official did not remove the appellant based on his

intent to falsify documents but due to his careless or negligent failure to conduct

the site visits. ID at 8-9, 12-13. Finally, she found that the penalty of removal

was within the range of reasonableness based on the deciding official’s proper

consideration of the Douglas factors. ID at 14-15; see Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981).

¶5 The appellant has filed a timely petition for review and submits a record of

his glucose readings for the period of February to April 2013. Petition for

Review (PFR) File, Tab 1 at 9-11. The agency has responded in opposition to the

petition for review. PFR File, Tab 3. The appellant has filed a reply to the

agency’s response, but the agency has filed a motion to strike the reply, alleging

that the reply exceeds the scope of the petition for review and its response. PFR

File, Tab 6, Tab 7 at 4.

The deciding official properly considered the appellant’s medical condition as a

mitigating factor.

¶6 The appellant has not contested the administrative judge’s decision to

sustain the charge, and we decline to disturb this well-reasoned finding on

review. See 5 C.F.R. § 1201.115 (the Board normally will consider only issues

raised in a timely petition for review or cross petition for review).

¶7 The appellant argues that the deciding official did not give sufficient

consideration to his diabetes as a potential mitigating factor. PFR File, Tab 1 at

4-5. The deciding official testified at the hearing that he considered the

appellant’s medical condition, but the medical condition did not provide a reason

for not making the field visits. Hearing Transcript (HT) at 100-01. The appellant

provided the deciding official with little information as to his medical condition

or how it affected his decision to submit false field examination reports. In his

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oral reply, the appellant noted that his diabetes required him to take medications

that caused stomach problems. IAF, Tab 6 at 36. In his written reply, the

appellant commented that a number of personal issues and his diabetes “heading

in the wrong direction” were evidence of a need for assistance. Id. at 38. These

responses included no medical documentation and provided the deciding official

with little to consider regarding how the medical condition affected the charged

behavior. In addition, the appellant testified at the hearing that he had not

previously informed his supervisor that he had diabetes. HT at 214. The notice

of proposed removal advised the appellant that he had the opportunity to “submit

affidavits and other documentary evidence in support of your reply, showing why

the charge(s) is (are) unfounded and any other reasons why your removal should

not be effected.” IAF, Tab 6 at 53. The appellant argues that his doctor’s

testimony shows that his medical condition caused confusion and that should have

led to the agency requesting additional evidence. PFR File, Tab 1 at 4. However,

the evidence cited by the appellant was not available to the deciding official

because the appellant did not share it. Given the minimal information provided to

the deciding official and the deciding official’s testimony that he did consider the

information, we find the appellant has not shown that the deciding official failed

to consider any of the information provided in either his oral or written reply. 3

The penalty of removal is reasonable based on the agency’s proven charge.

¶8 The appellant again argues on review that his penalty should be mitigated

based on his medical condition. Id. at 6. He alleges that the medical testimony

provided at the hearing supports his claim that his medical condition played a role

in his actions. Id. at 4. The weight to be given an employee’s medical condition

3

In addition to proving the charge against the appellant, the agency must show that the

action taken promoted the efficiency of the service. 5 U.S.C. § 7513(a). The

administrative judge found the agency’s decision to remove the appellant promoted the

efficiency of the service, and the appellant has not challenged th is findin g. ID at 7. We

see no basis for disturbing this well-reasoned finding on review.

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necessarily depends on whether that condition played a part in the charged

conduct. Roseman v. Department of the Treasury, 76 M.S.P.R. 334, 345 (1997).

Although the deciding official did not have this information available to him at

the time of his decision, the information is now before the Board. The

administrative judge should have addressed this new information in her initial

decision when reviewing the agency’s penalty determination. See Spithaler v.

Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (an initial decision

must identify all material issues of fact and law, summarize the evidence, resolve

issues of credibility, and include the administrative judge’s conclusions of law

and his legal reasoning, as well as the authorities on which that reasoning rests).

¶9 At the hearing, the appellant’s doctor testified that in July 2013, the

appellant’s blood sugar level was dangerously high. HT at 151-53. He stated that

at that level that it could cause lethargy and have an effect on concentration and

memory. HT at 151-52. The doctor stated that the July appointment was the first

time he saw the appellant in 2013. HT at 153-54. The doctor also testified that in

his opinion the appellant’s blood sugar could not have been out of control for

longer than a month or else he would have had more symptoms. HT at 155. The

field examination reports were submitted in February and March 2013, over 4

months before the appellant saw the doctor. IAF, Tab 6 at 22-23; HT at 153.

Based on the physician’s testimony, we find that the appellant’s diabetes was

likely under control during the period of time when he filed the false field

examination reports. Therefore, although we afford consideration to the

appellant’s medical condition, we find, based on our review, that he has not

shown that it is deserving of significant consideration as a mitigating factor

because it did not play a part in the charged misconduct.

¶10 Where, as here, all of the agency’s charges have been sustained, the Board

will review an agency-imposed penalty only to determine if the agency

considered all of the relevant factors and exercised management discretion within

tolerable limits of reasonableness. See Douglas, 5 M.S.P.R. at 306. The Board’s

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function in this regard is not to displace management’s responsibility but to

assure that managerial judgment has been properly exercised. Id. at 302. In

evaluating a penalty, the Board will consider, first and foremost, the nature and

seriousness of the misconduct and its relationship to the employee’s duties,

position, and responsibilities. Gaines v. Department of the Air

Force, 94 M.S.P.R. 527, ¶ 9 (2003). As the administrative judge noted in her

initial decision, the primary duty of a field examiner is to conduct field

examinations. ID at 15. Here, on multiple occasions the appellant admittedly

failed to perform the key duty of his job. ID at 15. The deciding official noted in

his Douglas factor analysis that there were no similar cases of field examiners

claiming to make visits that were not done, but other positions where credit was

taken for work not performed resulted in removal from the agency. IAF, Tab 6 at

32. The appellant had no disciplinary history, good performance reviews, and

over 20 years of federal service. Id. at 31. However, the appellant had been

trained on conducting field examinations, and the field examiners are independent

and work remotely with minimal supervision. Id. at 31-32. Finally, given the

nature of the appellant’s job, falsely reporting a visit could endanger the safety

and well-being of a beneficiary, individuals who have been held to be

incompetent or disabled. Id. at 30. Therefore, we find that the agency’s decision

to remove the appellant did not exceed the bounds of reasonableness and does not

warrant mitigation.

The appellant’s new documents and arguments do not provide a basis for

reversing the initial decision.

¶11 The appellant submits for the first time with his petition for review glucose

readings that date from before the close of the record below. PFR File, Tab 1 at

9-11. Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence

submitted for the first time with the petition for review absent a showing that it

was unavailable before the record closed despite the party’s due diligence.

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant

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states that he did not submit the information previously because he did not know

he would be considered disabled under the Americans with Disabilities Act. PFR

File, Tab 1 at 3. The appellant fails to assert that the documents were

unavailable, despite his due diligence before the record closed. See 5 C.F.R.

§ 1201.115(d). Therefore, we decline to consider this evidence.

¶12 In addition, to the extent that the appellant is now attempting to raise a

claim of disability discrimination, he did not raise this defense below. IAF, Tab

18. The Board generally will not consider an argument raised for the first time in

a petition for review absent a showing that it is based on new and material

evidence not previously available despite the party’s due diligence. Banks v.

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant makes

no such showing; therefore, we do not consider this argument.

¶13 The appellant alleges for the first time on review that the agency should

have contacted the references he provided when considering the penalty. PFR

File, Tab 1 at 5. The appellant contends that the agency’s failure to contact the

references constitutes harmful error. Id. Harmful error is defined as an error by

the agency in the application of its procedures that is likely to have caused the

agency to reach a conclusion different from the one it would have reached in the

absence or cure of the error. 5 C.F.R. § 1201.56(c)(3). The burden is on the

appellant to show that the error was harmful. Id. The appellant has not submitted

any law, rule, or regulation that required the deciding official to contact the

individuals he identified to obtain additional information regarding the appellant;

therefore, we discern no harmful procedural error. 4

4

To the extent the appellant is alleging that the agency violated h is constitutional right

to minimum due process of law by failing to contact the references he provided in h is

response to the notice of proposed removal, we find the argument unpersuasive. There

is no evidence indicating that the agency prevented the appellant from submitting

information regarding these references. Further, the record reflects that the deciding

official considered the appellant’s employment record as a mitigating factor. Under the

circumstances in this case, we discern no basis for find ing that the agency deprived the

appellant of a meaningful opportunity to respond by failing to contact his references.

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The appellant’s reply is rejected IN PART for failure to conform to the Board’s

regulations.

¶14 The appellant, through his attorney, filed a reply to the agency’s response to

the petition for review. PFR File, Tab 6. The agency filed a motion to strike the

appellant’s reply, alleging that his reply exceeded the scope of the issues raised in

his petition for review and the agency’s response. PFR File, Tab 7. We construe

the agency’s motion as a motion to reject the appellant’s pleading for failure to

conform to the Board’s regulations, and, for the reasons set forth below, we

GRANT IN PART and DENY IN PART the agency’s motion.

¶15 The Board’s regulations provide for only four types of pleadings on review:

a petition for review, a cross petition for review, a response, and a reply to a

response. 5 C.F.R. § 1201.114(a)(1)-(4). A reply is limited to the factual and

legal issues raised by another party in the response to the petition for review and

may not raise new allegations of error. 5 C.F.R. § 1201.114(a)(4). The Board

will not accept a pleading other than these four unless the party files a motion and

obtains leave from the Clerk of the Board to make such filing. 5 C.F.R.

§ 1201.114(a)(5).

¶16 Here, the appellant has filed no such motion. Rather, he has filed a reply in

which he elaborates on his claim, as set forth in his petition for review and

refuted by the agency in its response, that the administrative judge failed to

properly consider the medical evidence of record. His reply also sets forth four

See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985) (when a

tenured public employee is deprived of a property interest in his employment, he has a

constitutional right to minimum due process of law, i.e., notice and meaningful

opportunity to respond); cf. Flores v. Department of Defense, 121 M.S.P.R. 287, ¶ 11

(2014) (finding that the appellant waived his due process right to respond to a proposed

removal where there was no indication that the appellant made a reasonable effort to

assert his right to respond and where there was no evidence that the agency denied his

right to respond); Wilson v. Department of Homeland Security, 120 M.S.P.R. 686,

¶¶ 11-12 (2014) (a deciding official does not violate an employee’s right to due process

when he considers issues raised by the appellant in her response to the proposed adverse

action and then rejects those arguments in reaching a decision).

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additional legal arguments not raised in his petition for review or otherwise raised

in the agency’s response. 5 To the extent that the appellant’s reply elaborates on

his claim that he previously set forth in his petition for review, we DENY the

agency’s motion because the appellant’s reply does not exceed the scope of the

factual and legal issues raised in the agency’s response. In any event, as

discussed above, this claim does not provide a basis for disturbing the initial

decision. However, we GRANT the agency’s motion with regards to the

appellant’s four new arguments contained in his reply that exceeded the scope of

the factual and legal issues raised by the agency’s response. PFR File, Tabs 3, 6.

Accordingly, we have not considered the appellant’s new arguments contained in

his reply in reaching this decision. 6

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

5

The appellant’s additional arguments are that: (1) the Board should have conducted a

new Douglas analysis because of the new medical testimony at the hearing; (2) the

administrative judge should have considered the deciding official’s statement to be an

admission rather than subject his testimony to a credibility determination; (3) the

agency removed the appellant for a charge of fraud and not negligence; and (4) the

agency violated the appellant’s due process rights by not informing the appellant of an

aggravatin g factor considered by the deciding official. PFR File, Tab 6 at 3-9.

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To the extent that the appellant’s reply requested the Board to “re-open the Initial

Decision on its own motion,” the initial decision did not constitute a final decision

subject to the Board’s reopening regulation. See 5 C.F.R. § 1201.118 (the Board may at

any time reopen any appeal in which it has issued a final order or in which an initial

decision has become the Board’s final decision by operation of law), § 1201.113(a) (an

in itial decision will not become the Board’s final decision if any party files a timely

petition for review).

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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

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

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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. § 2000e-5(f)

and 29 U.S.C. § 794a.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.