The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERILYN L. TILLMAN, DOCKET NUMBER
Appellant, DA-0752-13-2534-I-1
v.
DEPARTMENT OF VETERANS DATE: May 18, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Sherilyn L. Tillman, Muskogee, Oklahoma, pro se.
Jacob B. Nist, Austin, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her 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 the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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 find that the agency failed to prove a
specification of the charge of lack of candor and a number of the specifications of
the charge of absence without leave (AWOL), we AFFIRM the initial decision.
¶2 The agency removed the appellant from the GS-6 position of Program
Support Assistant based on the following charges: (1) willful use of a
government owned vehicle (GOV) for other than official purposes;
(2) unauthorized use of a GOV; (3) disrespectful conduct (three specifications);
(4) inappropriate conduct; (5) failure to follow instructions (four specifications);
(6) lack of candor (two specifications); and (7) AWOL (eight specifications).
Initial Appeal File (IAF), Tab 5 at 25, 28, 69. The appellant appealed the
agency’s action, denying that she committed the charged misconduct and alleging
that the agency’s action was discrimination on the bases of age, religion, race,
and retaliation for her prior equal employment opportunity (EEO) activities. IAF,
Tab 1. The appellant requested a hearing that was held on December 5, 2013.
IAF, Tab 17.
¶3 Based on the record, the administrative judge found that the agency failed
to meet its burden to prove charge (1), willful use of a GOV for other than
official purposes, by preponderant evidence. IAF, Tab 22, Initial Decision (ID) at
3-9. However, she found that the agency met its burden to prove that the
3
appellant did not have authorization to use the GOV that she drove to attend an
Employee Assistance Program (EAP) meeting on April 9, 2013, thus proving
charge (2).
¶4 The administrative judge also found that the agency established that on
March 19, 2013, the appellant was disruptive and unprofessional during a staff
meeting, that on March 4, 2013, she interrupted and spoke over her supervisor
during a meeting about how the appellant was to perform her duties, and that on
February 28, 2013, she told her supervisor that she was just beginning an
assignment that she had received 2 weeks earlier. ID at 9-12. Thus, the
administrative judge found that the agency proved the three specifications of
charge (3), disrespectful conduct.
¶5 The administrative judge found not credible the appellant’s denial that on
March 7, 2013, she loudly stated “Oh Lord, there has got to be a better way,” and
other words to that effect, and that such statements are inappropriate when made
in the manner and setting of the appellant’s work station. ID at 12-13. Thus, the
administrative judge found that the agency proved charge (4), inappropriate
conduct.
¶6 The administrative judge found that the agency established that on
March 19, 2013, the appellant failed to provide her supervisor with the amount
spent on replacing linen in 2012 by the date specified, that on February 15, 2013,
she failed to use the proper spreadsheet to assist in completing a work order, that
on February 11, 2013, she failed to provide her supervisor with the blank vendor
form that had been requested, and that on February 5, 2013, she refused to
complete a purchase order. ID at 13-20. Thus, the administrative judge found
that the agency proved charge (5), failure to follow instructions.
¶7 The administrative judge found that on April 10, 2013, the appellant told
her supervisor that she did not know what an EAP meeting was about even though
the appellant herself had scheduled the meeting, and on March 14, 2013, she
provided a statement signed by her physician’s nurse indicating that she would be
4
unable to work from March 19 through March 28, 2013, with no explanation of
why she would be incapacitated. ID at 20-23. Thus, the administrative judge
found that the agency proved both specifications of charge (6), lack of candor.
¶8 The administrative judge found that the agency established that on
April 10, 2013, the appellant was away from her place of duty for 1½ hours
without authorization, and that from March 19, 2013, through March 27, 2013,
the appellant was away from the workplace without authorization because she had
not provided administratively acceptable evidence to support her absence. ID at
23-25. Thus, the administrative judge found that the agency had proved all the
specifications of charge (7), AWOL.
¶9 Additionally, the administrative judge found that the appellant failed to
prove her affirmative defenses that the agency discriminated against her on the
bases of race, religion, and age, and that she failed to prove retaliation for
engaging in EEO activity. ID at 25-29. Further, the administrative judge found
that the penalty was reasonable for the sustained misconduct and she affirmed the
appellant’s removal. ID at 29-31.
¶10 With her petition for review, the appellant submits an April 1, 2014
decision from the Office of Workers’ Compensation Programs (OWCP) finding
that her absences from March 19, 2013, through March 27, 2013, were related to
a work-related traumatic injury that she suffered in a car accident on
August 16, 2012. Petition for Review (PFR) File, Tab 2.
¶11 Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted
for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Here, the
administrative judge informed the parties that she intended to close the record at
the end of the hearing. IAF, Tab 5. She stated also that no evidence on a
jurisdictional issue filed after the record closed will be accepted unless it is new
and material evidence. Id. The OWCP decision did not relate to a jurisdictional
5
issue. Thus, it was not the type of new evidence that the administrative judge
indicated would be accepted into the record after the end of the hearing on
December 5, 2013. 2 IAF, Tab 17. Thus, we find that the April 1 OWCP decision
submitted by the appellant with her petition for review is new evidence and we
consider it below. See Avansino, 3 M.S.P.R. 211, 214.
¶12 An AWOL charge cannot be sustained if OWCP determines that the
employee was entitled to compensation benefits as a result of a work-related
injury for the time period charged as AWOL. See Brown v. National Archives
and Records Administration, 92 M.S.P.R. 95, ¶ 8 (2002). Here, OWCP’s decision
reverses an earlier OWCP decision that disallowed the appellant’s claim, and it
covers the entire period of the specifications two through eight of the agency’s
AWOL charge, i.e., from March 19, 2013, through March 27, 2013. PFR File,
Tab 2; IAF, Tab 5 at 73-74. Specifically, OWCP’s decision finds that the
appellant is entitled to leave without pay for the absences in the specifications.
PFR File, Tab 2. Therefore, in light of the newly-issued OWCP decision,
specifications two through eight of the AWOL charge cannot be sustained. See
Burton v. Department of the Army, 60 M.S.P.R. 392, 394-95 (1994); cf. Hagan v.
Department of the Army, 99 M.S.P.R. 313, ¶ 8 (2005) (where the agency placed
the appellant in an unauthorized absence status but OWCP subsequently
determined that he had a compensable injury for the period of his absence, he
should have been in an approved leave status).
¶13 Further, we find that in light of the newly-issued OWCP decision,
specification two of the lack of candor charge cannot be sustained. Lack of
candor is a “broad[ ] and . . . flexible concept whose contours and elements
depend on the particular context and conduct involved.” Ludlum v. Department
2
For unexplained reasons, although the record closed at the end of the hearing on
December 5, 2013, the administrative judge did not issue the in itial decision until a year
later on December 8, 2014, and the appellant timely filed a petition for review on
January 8, 2015.
6
of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002). Such a charge does not require
proof of intent, but rather “involve[s] a failure to disclose something that, in the
circumstances, should have been disclosed in order to make the given statement
accurate and complete.” Id. Ludlum expressly employs a flexible lack of candor
standard that requires the agency to produce some evidence that the appellant’s
actions, under the circumstances, involved an “element of deception.” Id.
¶14 Here, the relevant circumstances of specification two of the lack of candor
charge are those set forth in the agency’s specification underlying its charge, i.e.,
the appellant was denied a request for annual leave for March 21 and 22, 2013,
and in response she obtained a statement from a physician stating that she would
be unable to report to work from March 18 through March 26, 2013, a statement
which contained no indication regarding why she would be incapacitated from the
performance of her duties. IAF, Tab 5 at 73. The specification implies that the
appellant’s doctor’s statement was a deception allowing the appellant to use sick
leave for the period that she had been denied annual leave. However, based on
the findings in OWCP’s decision, we find that the agency failed to prove that the
appellant’s doctor’s statement was related to its denial of annual leave for
March 21 and 22, 2013, but involved separate circumstances, and was not a
deception for the appellant to be absent for the time that leave had otherwise been
properly denied. Further, the failure of the statement to indicate why the
appellant would be incapacitated is not, under the circumstances, an omission that
evidences deception on the appellant’s part and/or as to the basis of her inability
to work from March 19 through March 26, 2013. Given OWCP’s decision, the
appellant’s doctor’s statement did not fail to disclose something that should have
been disclosed in order to make the given statement accurate and complete. See
Ludlum, 278 F.3d 1280, 1284.
¶15 OWCP’s decision, however, does not warrant reversing the lack of candor
and AWOL charges because the administrative judge properly sustained the other
specification of the lack of candor charge and the remaining specification of the
7
AWOL charge. As the administrative judge found, the agency proved the
specification of the lack of candor charge that the appellant was not candid when
she stated to her supervisor that she had been invited to the EAP meeting and did
not know what it was about. IAF, Tab 5 at 73. The record shows that the
appellant by her own admission had scheduled the meeting, and thus knew what is
would be about. ID at 20-21. Further, as the administrative judge found, the
agency proved that the appellant was AWOL for 1½ hours when she attended the
EAP meeting without requesting leave, even though she knew that she must
request leave for the meeting. ID at 24. Where, as here, there is one charge with
multiple factual specifications set out in support of the charge, proof of one or
more, but not all, of the supporting specifications is sufficient to sustain the
charge. Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.
1990). Thus, the administrative judge properly found that the agency met its
burden of proof on its charges of lack of candor and AWOL on the basis of proof
of one supporting specification. See Crawford–Graham v. Department of
Veterans Affairs, 99 M.S.P.R. 389, ¶ 19 (2005).
¶16 To the extent that the appellant disagrees with the administrative judge’s
credibility findings and weighing of the evidence regarding the charges other than
lack of candor and AWOL, the initial decision reflects that the administrative
judge considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions. Although the administrative judge did not make explicit
credibility findings regarding the agency’s witnesses, she found that the
appellant’s supervisor’s testimony had more probative value that the appellant’s
denial of the charged misconduct of disrespectful conduct, ID at 11, and she
credited the agency witnesses who testified regarding the appellant’s failure to
follow directions, ID at 13-20. The administrative judge explicitly found not
credible the appellant’s denial of the conduct underlying the charge o f
inappropriate conduct. ID at 13. The Board must give deference to an
administrative judge’s credibility determinations where, as here, they are based
8
explicitly or implicitly on the observation of the demeanor of witnesses testifying
at a hearing. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002); accord Walker v. Department of the Army, 102 M.S.P.R. 474, ¶ 13 (2006).
We discern no reason to reweigh the evidence or substitute the Board’s own
judgment on credibility issues here. See Haebe, 288 F.3d 1288, 1302; Broughton
v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987).
¶17 Where, as here, the agency proves fewer than all of its charges, the Board
may not independently determine a reasonable penalty. Gray v. U.S. Postal
Service, 97 M.S.P.R. 617, ¶ 11 (2004), aff’d, No. 05-3074, 2005 WL 1368093
(Fed. Cir. June 9, 2005); Tisdell v. Department of the Air Force, 94 M.S.P.R. 44,
¶ 16 (2003). Rather, the Board may mitigate to the maximum reasonable penalty
so long as the agency has not indicated either in its final decision or during
proceedings before the Board that it desires that a lesser penalty be imposed on
fewer charges. Gray, 97 M.S.P.R. 617, ¶ 11; Tisdell, 94 M.S.P.R. 44, ¶ 16. The
Board may impose the same penalty imposed by the agency based on a
justification of that penalty as the maximum reasonable penalty after balancing
the mitigating factors. Gray, 97 M.S.P.R. 617, ¶ 11. The Board’s function
regarding its review of an agency’s penalty selection is not to displace
management’s responsibility, but to determine whether management exercised its
judgment within the tolerable limits of reasonableness. Id.; Carlton v.
Department of Justice, 95 M.S.P.R. 633, ¶ 6 (2004).
¶18 Although the administrative judge did not sustain the serious charge of
willful misuse of a GOV, we agree with her determination that removal is the
maximum reasonable penalty. Importantly, the deciding official did not indicate
that a lesser penalty would be imposed on fewer than all of the charges. Indeed,
as the administrative judge found, the deciding official indicated that each of the
9
charges of unauthorized use of a GOV, failure to follow directions, and lack of
candor alone warranted removal. 3 ID at 31.
¶19 Disrespectful conduct is a serious offense, and agencies are entitled to
expect employees to conduct themselves in accordance with accepted standards.
See Suggs v. Department of Veterans Affairs, 113 M.S.P.R. 671, ¶ 13 (2010) (the
Board has held that removal is an appropriate penalty for a single charge of
disrespectful conduct that includes multiple specifications), aff’d, 415 F. App’x
240 (Fed. Cir. 2011). Additionally, the Board has found that the penalty of
removal is appropriate where the appellant has demonstrated lack of candor and
has taken unauthorized absences. See Kamahele v. Department of Homeland
Security, 108 M.S.P.R. 666, ¶¶ 2, 15 (2008) (the Board found that the removal
penalty was reasonable where the appellant demonstrated lack of candor and
inappropriate conduct); Dunn v. Department of the Air Force, 96 M.S.P.R. 166,
¶¶ 2, 12–18 (2004) (removal was reasonable where the employee engaged in
conduct unbecoming and exhibited a lack of candor), aff’d, 139 F. App’x 280
(Fed. Cir. 2005). Thus, we agree with the administrative judge that the penalty of
removal for the charges of disrespectful conduct, lack of candor, unauthorized
absence, unauthorized use of a GOV, inappropriate conduct, and failure to follow
instructions is not beyond the tolerable limits of reasonableness. See ID at 29-31.
¶20 In her petition for review, the appellant appears to challenge the
administrative judge’s findings that she failed to prove her affirmative defenses
of discrimination and retaliation. PFR File, Tab 2 at 3-5. Based upon our review
3
The appellant asserts in her petition that the administrative judge erred by failing to
address the appellant’s assertion that she had been detailed to another supervisor at the
time that the agency effected her removal. Even if the appellant was detailed at the
time that the agency removed her, the position from which she was removed remained
her position of record, and she was removed from her position of record. IAF, Tab 5 at
25. To the extent that the administrative judge erred in failing to mention the
appellant’s detail, her failure did not prejudice the appellant’s substantive rights and
provides no basis for reversal of an initial decision. Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984).
10
of the record, however, we discern no basis to disturb the well-reasoned findings
of the administrative judge in this regard. ID at 25-29.
¶21 Accordingly, we AFFIRM the agency’s removal action.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. 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
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.
11
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.