Darrell Watson v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DARRELL WATSON, DOCKET NUMBER

Appellant, CH-0752-14-0163-I-1

v.

DEPARTMENT OF VETERANS DATE: May 13, 2015

AFFAIRS,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

David Duwel, Esquire, Dayton, Ohio, for the appellant.

Demetrious A. Harris, Esquire, Dayton, Ohio, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which

mitigated the appellant’s removal to a 30-day suspension and demotion to a

nonsupervisory position. Generally, we grant petitions such as this one only

when: the initial decision contains erroneous findings of material fact; the initial

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 and AFFIRM

the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant held the supervisory position of Program Specialist for the

agency’s medical center in Dayton, Ohio. Initial Appeal File (IAF), Tab 3,

Subtab 4a (Standard Form 50), Subtab 4pp (position description). In May 2013,

the agency received a sexual harassment complaint from a “patient/volunteer,”

Ms. M. IAF, Tab 3, Subtab 4l. The agency convened an Administrative

Investigation Board (AIB). IAF, Tab 3, Subtab 4h. Although the AIB found

unsubstantiated Ms. M’s harassment allegations, it concluded that the appellant

did engage in a consensual sexual relationship with her and that, though unrelated

to his relationship with Ms. M, he sent inappropriate emails from his government

computer. Id. at 80-82 (AIB final conclusions).

¶3 In September 2013, the agency proposed the appellant’s removal. IAF,

Tab 3, Subtab 4e. The agency charged him with: (A) establishing an

inappropriate relationship with a veteran patient; (B) failure to maintain

professional boundaries with a veteran patient; and (C) inappropriate use of a

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government computer. Id. at 2-19. The appellant responded to the charges,

admitting the inappropriate relationship and inappropriate use of his computer,

but requesting discipline short of removal. IAF, Tab 3, Subtab 4d. Nevertheless,

the agency issued its decision, removing the appellant from service. IAF, Tab 3,

Subtab 4b.

¶4 The appellant filed a Board appeal, alleging that removal was an

unreasonably severe penalty. IAF, Tab 1 at 6; see IAF, Tab 17 at 2 (prehearing

conference summary identifying the disputed issues). The administrative judge

found that the agency met its burden of proving the charges 2 and nexus. IAF,

Tab 18, Initial Decision (ID) at 3-6. However, he mitigated the appellant’s

removal to a 30-day suspension and demotion to a nonsupervisory position. ID at

6-9. The agency has filed a petition for review, arguing that the administrative

judge erred by mitigating the penalty. Petition for Review (PFR) File, Tab 1.

The appellant has filed a response. PFR File, Tab 3.

¶5 Where 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. Woebcke v. Department of Homeland Security, 114 M.S.P.R.

100, ¶ 7 (2010). The most important factor in assessing whether the agency’s

chosen penalty is within the tolerable bounds of reasonableness is the nature and

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

and responsibilities. Edwards v U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14

(2010).

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The administrative judge merged charges A and B because he found that they were

duplicative. IAF, Tab 17 at 2; see generally Powell v. U.S. Postal Service,

122 M.S.P.R. 60, ¶¶ 10, 11 n.3 (2014) (the Board will merge charges if they are based

on the same conduct and proof of one automatically constitutes proof of the other; the

fact that a charge has been merged into another does not mean that the appellant’s

conduct somehow becomes less serious).

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¶6 Here, the administrative judge determined, and we agree, that the agency’s

decision to remove the appellant exceeded the tolerable limits of reasonableness

under the circumstances. ID at 8. Significantly, the administrative judge found,

contrary to the assertions made by the deciding official, that the appellant’s

misconduct was not particularly egregious in relation to his duties. ID at 6-8;

IAF, Tab 3, Subtab 4c at 1-2. For instance, although the deciding official

testified that the appellant’s misconduct concerning charge A/B constituted

patient abuse because Ms. M was a patient of the hospital at the time, the

administrative judge correctly noted, based upon the results of the AIB

investigation, that his relationship with Ms. M appeared to have been “more

related to her volunteer status than her status as a female Veteran patient.” ID at

7 (quoting IAF, Tab 3, Subtab 4h at 81). Moreover, the AIB did not find that the

appellant abused his relationship with Ms. M or used his position to manipulate

her, and it found that the relationship was consensual and entered into voluntarily

by both parties, without a quid pro quo arrangement of employment for Ms. M or

sexual favors for the appellant. Id. Similarly, concerning charge C, the

administrative judge noted that the appellant merely forwarded inappropriate

emails; he did not create them. ID at 6. He also found no evidence that the

appellant’s forwarding of the emails disrupted the workplace or substantially

interfered with the performance of his duties or the agency’s ability to accomplish

its mission, noting that he forwarded, on average, only one inappropriate email

per month from March 2009 through January 2011. Id.

¶7 Because he determined that the removal penalty was too severe, the

administrative judge independently weighed the relevant mitigating factors,

finding that a 30-day suspension and demotion to a nonsupervisory position was

the maximum reasonable penalty under the circumstance. ID at 8-9. Specifically,

the administrative judge found that the appellant had been employed by the

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agency for 18 years, 3 had a clean work record, and had received outstanding

performance evaluations over the previous 4 years. ID at 8. He also found that

the appellant had a high potential for rehabilitation based in part on his demeanor

at the hearing. Id.

¶8 On review, the agency disputes the administrative judge’s finding that the

appellant had a high potential for rehabilitation. PFR File, Tab 1 at 7-9. In the

initial decision, the administrative judge found, given the turmoil in the

appellant’s 33-year marriage that resulted from his relationship with Ms. M, that

he was highly unlikely to repeat such misconduct in the future. ID at 8. He also

found a high rehabilitation potential because the appellant fully admitted his

misconduct and his demeanor at the hearing evinced genuine remorse for his

actions. ID at 8. The agency argues that the appellant’s admission of the

inappropriate relationship with Ms. M does not demonstrate a potential for

rehabilitation, considering he had little alternative under the circumstances. PFR

File, Tab 1 at 8. It also argues that the administrative judge impermissibly

“expanded the scope of ‘potential for rehabilitation’” by considering the turmoil

in the appellant’s marriage. Id. at 9. We disagree. Given that the administrative

judge, as the trier of fact, based his findings in part upon the appellant’s

demeanor at the hearing and because we find that it was within the administrative

judge’s discretion to consider all testimony he deemed relevant, we find the

agency’s arguments are insufficient to overturn the administrative judge’s

3

The administrative judge considered the appellant’s 18-year tenure with the agency as

a mitigating factor while it appears that the deciding official considered it as an

aggravatin g factor, stating that his “length of service with the agency and extended

period of time serving in a supervisory capacity speak to the level of knowledge and

judgment he should have been exercising regarding his inappropriate actions.” ID at 8;

IAF, Tab 3, Subtab 4c at 2-3. The Board has specifically rejected the deciding

official’s approach, noting that such a scheme yields the illogical resu lt that the longer

an individual works for an agency, the more likely that a single misstep would be fatal

to his career. Shelly v. Department of the Treasury, 75 M.S.P.R. 677, 684 (1997). We

find the administrative judge’s consideration of this factor as appropriate and consistent

with the law.

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findings that the appellant evinced genuine remorse and had a high potential for

rehabilitation. ID at 8; see Haebe v. Department of Justice, 288 F.3d 1288, 1301

(Fed. Cir. 2002) (the Board may overturn credibility determinations based on the

observation of the demeanor of witnesses testifying at a hearing only when it has

“sufficiently sound” reasons for doing so). Accordingly, we conclude that the

agency has set forth no basis to disturb the administrative judge’s findings in this

regard.

¶9 The agency also argues on review that the administrative judge erred in

relying on Reynolds v. Veterans Affairs, 75 M.S.P.R. 509 (1997), in determining

the maximum reasonable penalty. PFR File, Tab 1 at 9-10. We disagree. In

Reynolds, the Board mitigated a removal to a 30-day suspension where the

appellant developed a romantic relationship with a veteran patient she eventually

married. 75 M.S.P.R. at 517. The Board considered, among other things, that the

appellant had almost 18 years of satisfactory service with had no prior offenses,

like the appellant here. Id. The appellant in Reynolds was a nonsupervisory

employee, as the agency noted. However, the administrative judge’s actions in

this case were actually consistent with Reynolds given that he demoted the

appellant from a supervisory to a nonsupervisory position in addition to imposing

a 30-day suspension. ID at 9. We therefore find no error in this regard and

affirm the administrative judge’s finding that a 30-day suspension and demotion

to a nonsupervisory position is the maximum reasonable penalty under the

circumstances.

ORDER

¶10 We ORDER the agency to cancel the appellant’s removal and substitute in

its place a 30-day suspension and demotion to a nonsupervisory position effective

November 15, 2013. This action must be accomplished no later than 20 calendar

days after the date of this decision.

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¶11 We ORDER the agency to place the appellant in a position in the next

lower-graded nonsupervisory position, with the least reduction in pay, in which

the appellant can be expected to perform in a fully satisfactory manner. This

action should be made retroactive to the date of the removal, and must be

accomplished no later than 20 calendar days after the date of this decision.

¶12 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency's

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board's Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶13 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board's Order and of the actions it

took to carry out the Board's Order. The appellant, if not notified, should ask the

agency about its progress. See 5 C.F.R. § 1201.181(b).

¶14 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board's Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board's Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board's Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶15 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

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are attached. We ORDER the agency to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You

must file your attorney fees motion with the office that issued the initial decision

on your appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit. 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

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).

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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 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

information regarding 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.

DFAS CHECKLIST

INFORMATION REQUIRED BY DFAS IN

ORDER TO PROCESS PAYMENTS AGREED

UPON IN SETTLEMENT CASES OR AS

ORDERED BY THE MERIT SYSTEMS

PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIRED B Y IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT

CASES

CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL

OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address

and POC to send.

2. Statement that employee was counseled concerning Health Benefits and TSP and the

election forms if necessary.

3. Statement concerning entitlement to overtime, night differential, shift premium,

Sunday Premium, etc, with number of hours and dates for each entitlement.

4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay

System), a statement certifying any lump sum payment with number of hours and

amount paid and/or any severance pay that was paid with dollar amount.

5. Statement if interest is payable with beginning date of accrual.

6. Corrected Time and Attendance if applicable.

ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:

1. Copy of Settlement Agreement and/or the MSPB Order.

2. Corrected or cancelled SF 50's.

3. Election forms for Health Benefits and/or TSP if app licable.

4. Statement certified to be accurate by the employee which includes:

a. Outside earnings with copies of W2's or statement from employer.

b. Statement that employee was ready, willing and able to work durin g the period.

c. Statement of erroneous payments employee received such as; lump sum leave, severance

pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew

Retirement Funds.

5. If employee was unable to work during any or part of the period involved, certification of the

type of leave to be charged and number of hours.

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as

ordered by the Merit Systems Protection Board, EEOC, and courts.

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise

information describing what to do in accordance with decision.

2. The following information must be included on AD-343 for Restoration:

a. Employee name and social security number.

b. Detailed explanation of request.

c. Valid agency accounting.

d. Authorized signature (Table 63)

e. If interest is to be included.

f. Check mailing address.

g. Indicate if case is prior to conversion. Computations must be attached.

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to

be collected. (if applicable)

Attachments to AD-343

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday

Premium, etc. with number of hours and dates for each entitlement. (if applicable)

2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and

amounts.

3. Outside earnings documentation statement from agency.

4. If employee received retirement annuity or unemployment, provide amount and address

to return monies.

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of

the type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual

Leave to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay

Period and required data in 1-7 above.

The following information must be included on AD-343 for Settlement Cases: (Lump

Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)

a. Must provide same data as in 2, a-g above.

b. Prior to conversion computation must be provided.

c. Lump Sum amount of Settlement, and if taxable or non-taxable.

If you have any questions or require clarification on the above, please contact NFC’s

Payroll/Personnel Operations at 504-255-4630.