The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TORREY A. CLARK, DOCKET NUMBER
Appellant, CH-0752-14-0146-I-1
v.
DEPARTMENT OF VETERANS DATE: September 15, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dale L. Ingram, Esquire, Kansas City, Missouri, for the appellant.
Michael E. Anfang, Esquire, Kansas City, Missouri, 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 his 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A nonprecedential order is one that the Board has determined does not add
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 Parties may cite nonprecedential orders,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
erroneous application of the law to the facts of the case; the administrative
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 November 5, 2013, the agency removed the appellant from his
Nursing Assistant position at its Kansas City Medical Center based on a charge of
improper conduct. Initial Appeal File (IAF), Tab 4 at 50–53. The charge was
supported by the following specifications: (1) in August 2013, the appellant
asked a female coworker, P.O., “when are you going to send me some good
photos of you?”, entered his phone number into her cell phone and told her that
she might need it, and later that day approached her in a patient’s room and
grabbed her buttocks; and (2) on August 21, 2013, the appellant grabbed P.O.’s
breast, put his hand on her thigh, whispered in her ear, “I can be much better if
you want me to,” and licked her ear. Id. at 41–42.
¶3 The appellant filed an appeal in which he disputed the charges against him
and challenged the reasonableness of the penalty. IAF, Tab 1 at 4, Tab 8 at 2–3.
After holding the appellant’s requested hearing, the administrative judge issued
an initial decision affirming the removal action. IAF, Tab 1 at 2, Tab 13, Initial
Decision (ID). The administrative judge found that the agency proved that the
3
appellant had engaged in the charged misconduct based on P.O.’s testimony,
which he found to be more credible than the appellant’s testimony. ID at 3–10.
Applying the factors for making credibility determinations set forth in Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987), the administrative judge
found P.O.’s testimony to be more credible than the appellant’s citing her
demeanor, the lack of any evidence that she had a motive to fabricate her
allegations against the appellant, and the consistency of her testimony with her
prior written statement. ID at 9–13. Consequently, the administrative judge
sustained both specifications underlying the charge of improper conduct. ID
at 13. He also found a nexus between the charge and the efficiency of the
service, and determined that removal was within the bounds of reasonableness. 2
ID at 13–15.
¶4 The appellant has filed a petition for review in which he argues that the
administrative judge erred in his credibility determinations, made erroneous
factual findings, and improperly determined that the deciding official considered
the relevant Douglas factors. Petition for Review (PFR) File, Tab 3 at 5–10,
17-34. The agency has responded to the appellant’s petition. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly sustained the agency’s charge.
The administrative judge properly applied the Hillen factors in making the
required credibility determinations.
¶5 On review, the appellant argues that the administrative judge erred in
sustaining the agency’s charge by failing to follow the standards set forth in
Hillen. PFR File, Tab 3 at 5. He asserts that the administrative judge erred in
making broad credibility determinations and only referencing some of the
material evidence. Id. at 6. The Board must give deference to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly,
2
The appellant does not contest the administrative judge’s finding regarding nexus, and
we discern no basis for disturbing this finding on review.
4
on the observation of the demeanor of witnesses testifying at a hearing; the Board
may overturn such determinations only when it has “sufficiently sound” reasons
for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002). As discussed below, the appellant has not provided sufficiently sound
reasons for overturning the administrative judge’s credibility findings, which
were based on his observation of the witnesses’ demeanor. Further, an
administrative judge’s failure to mention all of the evidence of record does not
mean that he did not consider it in reaching his decision. 3 Diggs v. Department of
Housing & Urban Development, 114 M.S.P.R. 464, ¶ 8 (2010).
¶6 The appellant asserts that the administrative judge ignored inconsistent
statements made by P.O. regarding where she was when the events underlying
specification one occurred. 4 PFR File, Tab 3 at 29. P.O. testified that she was in
the hallway outside of a patient’s room showing the appellant and other
coworkers pictures of her baby when the appellant asked her, “when are you
going to send me some good photos of you?” in a suggestive tone. Hearing
Compact Disc (HCD), Track 4 (18:50–19:52). The appellant asserts that such
testimony is inconsistent with an August 21, 2013 interview statement that P.O.
3
In support of his arguments, the appellant cites to Furlough v. Department of the
Army, 39 M.S.P.R. 122, 124–25 (1988), where the Board remanded the case because the
administrative judge failed to adequately explain his credibility findings. PFR File,
Tab 3at 6. Here, in contrast, the administrative judge clearly summarized the relevant
testimony and explained why he found P.O.’s testimony to be more credible than the
appellant’s. ID at 3–13.
4
The appellant also asserts that P.O.’s interview statement that she “noticed that [the
appellant] punched his number into [her] phone” is inconsistent with her testimony that
the appellant “grabbed [her] phone and put his number into [it].” PFR File, Tab 3 at 30;
see IAF, Tab 4 at 23; Hearing Compact Disc (HCD), Track 4 (0:57-1:25:29). We find
that such statements are not inconsistent. Similarly, we find unavailing the appellant’s
argument that P.O.’s statement that the appellant told her “[she] might need to use the
number” is inconsistent with her testimony that the appellant stated she “needed to call
him. Use it sometime.” PFR File, Tab 3 at 30; see IAF, Tab 4 at 23; HCD, Track 4
(0:57-1:25:29).
5
gave to the agency’s Equal Employment Opportunity Program Manager. PFR
File, Tab 3 at 18, 29.
¶7 According to the Program Manager’s notes of the August 21, 2013
interview, P.O. stated that, “[w]ithin the last 2 weeks, I was in a patient’s room. I
was showing [the appellant] pictures on my phone of my baby getting a bath.”
IAF, Tab 4 at 23 (emphasis added). P.O. testified that the interview statement
was accurate. HCD, Track 4 (18:50–19:51). When asked specifically about the
discrepancy in locations, she testified that the sentences separately were accurate,
but it was not accurate that she was in a patient’s room when showing the pictures
to the appellant and that it appeared to her that a sentence was missing from the
interview statement. Id. (42:30–45:20).
¶8 We find this discrepancy is not a significant factor in assessing P.O.’s
credibility because the document was not prepared or signed by her and the
phrasing of the statements is somewhat unclear. 5 Significantly, as the
administrative judge found, P.O. made another statement on August 21, 2013,
which she drafted and signed, and which is consistent with her hearing testimony.
See ID at 9–10; IAF, Tab 4 at 25. Thus, we find that the weight of the evidence
supports the administrative judge’s finding that P.O. was a credible witness. See
Box v. U.S. Postal Service, 51 M.S.P.R. 401, 404 (1991) (determining that the
administrative judge properly found a witness’s hearing testimony credible in
light of other evidence of record, notwithstanding his prior
inconsistent statements).
¶9 Next, the appellant contends that the administrative judge erred in finding
the testimony of a coworker, M.F., was of limited probative value when, in fact, it
conflicted with P.O.’s testimony and diminished her credibility. PFR File, Tab 3
at 19–22, 24–26. M.F. testified that she did not witness any interaction between
5
The appellant similarly contends that the agency’s notes of his interview inaccurately
stated that he said something inappropriate and that “this happened before at another
job and I got fired.” IAF, Tab 4 at 33, HCD, Track 9 (2:20–3:30).
6
the appellant and P.O. but that she was working on August 21, 2013, the date P.O.
alleged that the appellant grabbed her breast, rubbed her thigh, and licked her ear.
HCD, Track 7 (1:30-15:30). She further testified that at some point that day she
saw P.O. sitting in the hallway at a computer on wheels (COW) with her left side
against the wall and that, if someone was going to talk to her, they would have
done so on her right side. Id. P.O. testified that the appellant approached her on
her left side on that date. 6 HCD, Track 4 (1:02–1:06:33).
¶10 The administrative judge found that, although M.F. was credible, her
testimony was of limited probative value because she provided no time of day or
other context for her observation. ID at 11. As the administrative judge
determined, M.F. did not witness any interaction between the appellant and P.O.,
and she testified that the COWs are mobile. HCD, Track 7 (1:30-15:30); ID
at 11. Thus, her testimony that she saw P.O. on August 21, 2013, sitting at a
COW at a certain location, is not inconsistent with any testimony by P.O. that she
was sitting at a COW at a different location when the appellant approached her.
ID at 11. Accordingly, we defer to the administrative judge’s finding that M.F.’s
testimony did not detract from P.O.’s credibility. Id.
¶11 In addition, the appellant asserts that P.O.’s reaction to his alleged improper
conduct is inconsistent with how a reasonable woman would have reacted. PFR
File, Tab 3 at 22–23. The appellant further asserts that it is inherently improbable
that he engaged in the alleged improper conduct because he has never been
associated with such behavior in the past. Id. at 33–34. We find such arguments
lack merit, constitute mere disagreement with the administrative judge’s
credibility determinations, and do not provide a basis to disturb the initial
decision. See Haebe, 288 F.3d at 1301; Diggs, 114 M.S.P.R. 464, ¶ 8. After
reviewing the record, we find that the administrative judge’s credibility
6
The cross examination regarding P.O.’s location was inadequately developed at the
hearing. For clarity, P.O. offered to draw a diagram, but the appellant’s counsel
declined. HCD, Track 4 (1:02–1:06:33).
7
conclusions were complete, based on proper considerations, and consistent with
the record, and we decline to disturb them. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105–06 (1997) (the Board will give due deference to the
credibility findings of the administrative judge where she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions).
The appellant’s remaining arguments regarding the agency’s charge do not
provide a basis for disturbing the initial decision.
¶12 The appellant asserts on review that the administrative judge made
“unsupported assumptions and inferences” and ignored deficiencies in the
agency’s case. PFR File, Tab 3 at 6–7, 26. He also asserts that the agency’s
investigation of P.O.’s allegations was insufficient and biased. Id. at 17–19. We
find that such arguments do not provide a basis for disturbing the administrative
judge’s finding that the agency proved its charge.
¶13 An agency need only prove its charge by preponderant evidence.
See 5 U.S.C. § 7701(c)(1)(B)). A preponderance of the evidence is that degree of
relevant evidence that a reasonable person, considering the record as a whole,
would accept as sufficient to find that a contested fact is more likely to be true
than untrue. 5 C.F.R. § 1201.4(q). The agency, therefore, was not required to
offer all readily available evidence or provide “determinative proof of its case” as
the appellant contends. PFR File, Tab 3 at 26. Thus, we find that the appellant
has shown no basis upon which to disturb the administrative judge’s finding that
the agency proved its charge of improper conduct. 7
7
The appellant also argues that the administrative judge should have drawn an adverse
inference due to the agency’s failure to offer readily available evidence, such as P.O.’s
telephone, and the agency’s failure to investigate and call as witnesses any coworkers
who may have overheard the appellant’s inappropriate comments. PFR File, Tab 3
at 27–29. The appellant, however, had the opportunity to obtain relevant information
from the agency through discovery. See IAF, Tab 2 at 3; 5 C.F.R. § 1201.73(a). To the
extent the appellant is alleging that the agency failed to sufficiently respond to any of
the administrative judge’s orders to produce, the appellant failed to preserve any such
objection below. See Schroeder v. Department of Transportation, 60 M.S.P.R. 566,
572–73 (1994) (finding that the appellants did not preserve their objection to the
8
The administrative judge correctly determined that the penalty of removal was
within the tolerable limits of reasonableness.
¶14 On review, the appellant argues that the administrative judge erred when he
concluded that the deciding official conducted a Douglas factors analysis. PFR
File, Tab 3 at 7–10. In determining an appropriate penalty, an agency must
review relevant mitigating factors, also known as the Douglas factors pursuant to
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305–06 (1981). The Board
gives due deference to the agency’s discretion in exercising its managerial
function of maintaining employee discipline and efficiency. See Davis v. U.S.
Postal Service, 120 M.S.P.R. 457, ¶ 6 (2013). Thus, the Board will modify a
penalty only when it finds that the agency failed to weigh the relevant factors or
that the penalty the agency imposed clearly exceeded the bounds of
reasonableness. Id.
¶15 The administrative judge deferred to the agency’s decision to remove the
appellant after finding that the deciding official considered the relevant Douglas
factors, including the nature and seriousness of the misconduct, the appellant’s
past work record, including length of service, performance on the job, and prior
letters of counseling, and his potential for rehabilitation. ID at 14. We agree that
deference was appropriate here. The appellant asserts that the deciding official
failed to consider the Douglas factors because he did not draft the agency’s
Douglas factors analysis. PFR File, Tab 3 at 7–10. While it is true that the
deciding official testified that he did not prepare the written Douglas factor
analysis, he also testified that he reviewed it before signing it. HCD, Track 6
(44:15). The deciding official further testified that, in making the decision to
remove the appellant, he regarded the appellant’s misconduct as very serious and
determined that a lesser penalty was not warranted in light of the gravity of the
offense, which involved physical touching. HCD, Track 6 (8:00–13:00). He also
sufficiency of the agency’s response to an order to produce because they did not file a
second motion to compel or a motion for sanctions).
9
testified that he considered the appellant’s 2 years of Federal service and the fact
that the agency removed at least three other employees for similar misconduct.
Id. As to the appellant’s potential for rehabilitation, the deciding official testified
that he viewed the appellant’s two prior counselings as demonstrating a “trend of
inappropriate behavior.” 8 Id.
¶16 Accordingly, we find that the appellant has not shown that the deciding
official failed to consider the Douglas factors in assessing the penalty, and we
agree with the administrative judge that removal is within the tolerable limits of
reasonableness. See ID at 15; see, e.g., Cisneros v. Department of
Defense, 83 M.S.P.R. 390, ¶ 20 (1999) (finding removal for inappropriate
comments and physical contact was reasonable in view of the seriousness of the
appellant’s sexual misconduct and his supervisory role), aff’d, 243 F.3d 562 (Fed.
Cir. 2000) (Table). Based on the foregoing, we decline to disturb the initial
decision affirming the appellant’s removal.
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
8
For these same reasons, we also find unavailing the appellant’s argument that the
agency falsely misrepresented that the deciding official considered the Douglas factors.
PFR File, Tab 3 at 9.
10
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).
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 appeal to
the Court of Appeals for the Federal Circuit, 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.