The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICKEY A. MCCOY, DOCKET NUMBER
Appellant, AT-0752-15-0197-I-1
v.
DEPARTMENT OF VETERANS DATE: September 25, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rickey A. McCoy, Miami Garden, Florida, pro se.
Karen L. Mulcahy, Esquire, Bay Pines, Florida, 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
sustained 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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, 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 The appellant was employed as a Psychiatric Nursing Assistant. Initial
Appeal File (IAF), Tab 4 at 60. The agency proposed his removal on the basis of
three charges that arose out of a single altercation with a patient: (1) patient
abuse, (2) fighting, and (3) inappropriate language toward a patient. Id. at 26.
The appellant responded both orally and in writing to the proposal. Id. at 21-23.
Specifically, he contested the charges and requested mitigation of the proposed
removal penalty. Id. at 23. The agency nevertheless imposed the removal. Id.
at 16.
¶3 The appellant filed a Board appeal challenging his removal and requested a
hearing. IAF, Tab 1. After holding the requested hearing, Hearing Compact Disc
(HCD), the administrative judge issued an initial decision in which he merged the
three charges of patient abuse, fighting, and inappropriate language into a single
charge of patient abuse with two specifications—fighting and inappropriate
language. 2 IAF, Tab 17, Initial Decision (ID) at 3-4. The administrative judge
2
The administrative judge determined that the first two charges were based upon a
single incident and were improperly duplicative and that inappropriate language is
3
sustained the single charge, finding that the agency proved the fighting
specification, but failed to prove the inappropriate language specification. ID
at 4-11. The administrative judge also sustained the penalty of removal, deferring
to the agency’s penalty determination. 3 ID at 14-15.
¶4 The appellant has filed a timely petition for review in which he asserts,
inter alia, that the administrative judge erred in making his credibility
determinations and weighing the relevant testimony and that the agency erred in
several ways when it investigated the charges against him. Petition for Review
(PFR) File, Tab 1. The appellant also appears to challenge the penalty
determination. 4 Id. at 1. The agency has responded in opposition to the petition,
and the appellant has filed a reply. 5 PFR File, Tabs 8-9.
included in the agency’s definition of patient abuse. ID at 4; see IAF, Tab 4 at 49-50.
On review, the appellant does not challenge the administrative judge’s construction of
the charges and we see no reason to disturb it.
3
The administrative judge found that the agency’s disciplinary action promoted the
efficiency of the service, ID at 13, and that the appellant failed to establish his
affirmative defense of race discrimination, ID at 16-17. The appellant has not
challenged these findings on review and we see no reason to disturb them.
4
The appellant asserts that the administrative judge did not consider certain evidence or
that it was not included in the record. See, e.g., PFR File, Tab 9 at 1, 4. Although
some of the evidence was indeed mentioned in the initial decision and some was not, 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. Diggs v. Department of Housing &
Urban Development, 114 M.S.P.R. 464, ¶ 8 (2010).
5
In his pleadings on review, the appellant submits additional evidence, including his
previously-submitted response to the proposed removal, the arrest information of, and
an article about, the patient with whom he engaged in the altercation, and several
character references. PFR File, Tab 1 at 12-14, Tab 9 at 5-7. None of this evidence,
which all came about prior to the issuance of the initial decision, is new evidence that
was not previously available below despite the appellant’s due diligence, and we
therefore do not consider it. See Banks v. Department of the Air Force, 4 M.S.P.R. 268,
271 (1980); 5 C.F.R. § 1201.115(d). However, even if we did consider the evidence, it
would not affect our disposition of this case.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the charge.
¶5 The agency’s policy defines patient abuse to comprise numerous actions
including, but not limited to, physical and verbal abuse. IAF, Tab 4 at 49-50.
Proof of one or more, but not all, of the supporting specifications of the charge is
sufficient to sustain the charge. Alvarado v. Department of the
Air Force, 103 M.S.P.R. 1, ¶ 16 (2006). The Board will not disturb an
administrative judge’s findings when he considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on issues of credibility.
See Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
(1987). More specifically, when a hearing was held, the Board will defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, upon the observation of the demeanor of witnesses testifying at a
hearing, because the administrative judge is in the best position to observe the
demeanor of the witnesses and determine which witnesses were testifying
credibly. Haebe v. Department of Justice, 288 F.3d 1288, 1300-01 (Fed. Cir.
2002). Based on the following, we find that the administrative judge properly
sustained the single charge of patient abuse supported by the specifications that
had originally been categorized as both patient abuse and fighting.
¶6 Here, the administrative judge properly applied the Hillen factors 6 for
assessing witness credibility and sustained the charge based upon his
determination that the Nursing Assistant who testified on behalf of the agency
6
To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version he believes, and explain in detail why he found the chosen version more
credible, considering such factors as: (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) the witness’s character; (3) any prior
inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453,
458 (1987).
5
was more credible than both the appellant and the patient who testified on his
behalf. ID at 6-13. Specifically, the administrative judge questioned the ability
of the patient to accurately observe and recall events because he was taking
prescription drugs at the time of the incident and because his testimony conflicted
with that of both the appellant and the Nursing Assistant. ID at 7. Concerning
the appellant’s capacity, the administrative judge noted that he was directly
involved in a highly stressful and physical situation, and that it was thus
unsurprising that his testimony reflected some uncertainty concerning details of
the event. Id. For instance, although the appellant did not deny “scooping” up
the patient during the altercation, he was less than certain about everything that
happened. Id. By contrast, the administrative judge found that there was no
evidence that the Nursing Assistant experienced these or any other impediments
about what she observed. Id.
¶7 The administrative judge next properly found that the witnesses’ character
was not a significant factor in determining credibility, despite the appellant’s
attempts to discredit the Nursing Assistant’s character because she previously was
temporarily removed from (but later returned to) her duty station based upon an
allegation of misconduct. ID at 7-8.
¶8 As for bias, the administrative judge found that there was no bias on the
part of the Nursing Assistant and that the appellant had not suggested as such. Id.
Conversely, the administrative judge found that both the appellant and the patient
who testified on his behalf harbored resentment towards the other patient (with
whom the appellant had engaged in the altercation) because of their assertions
that he had made racist remarks and that their resentment about these remarks
could have affected their written statements and hearing testimony. ID at 8-9. As
for the contradiction of the witnesses’ versions of events by other evidence or its
consistency with other evidence, the administrative judge correctly found that the
Nursing Assistant’s testimony was “more or less confirmed” by the appellant’s
testimony and was consistent with his admissions to the agency’s investigator.
6
ID at 9. Further, the administrative judge found that the police officer’s
testimony undermined the appellant’s denial that he choked the patient. ID at 10.
Similarly, he found that the Nursing Assistant’s testimony was consistent with the
appellant’s concession that he might have had his hands near the patient’s neck
during the altercation as well as the testimony of the police officer, who observed
and photographed scratches or welts on or near the patient’s neck after the
incident. ID at 9-10.
¶9 Also, we find that the administrative judge considered that the appellant’s
testimony, that he would never choke or hit a fellow veteran, was intended to
suggest the inherent improbability of the charged misconduct. Id. However, the
administrative judge properly found the scenario surrounding the charged
misconduct was not improbable because, although the appellant might not
ordinarily harm a veteran, he could have reacted inappropriately to a patient in a
highly stressful situation, as occurred here. Id.
¶10 The administrative judge, moreover, considered witness demeanor. ID
at 10-11. He found that both the appellant and the Nursing Assistant appeared to
believe their respective versions of pertinent events and thus found their
demeanor to be credible. ID at 10. However, he found the patient not credible
because he was too ready to agree with whatever question or proposition was put
before him and factors such as the extra-investigatory nature of his written
statement and the potential for collaboration between the appellant and the patient
due to the appellant’s submission of the statement long after the incident created
doubt as to the credibility of the patient’s testimony. ID at 10-11. We find that,
because the administrative judge determined that the Nursing Assistant’s
testimony was more credible than the other testimony, he correctly found that the
agency’s factual allegations in the first specification were accurate and thus
sustained the specification. ID at 11.
¶11 We also defer to the administrative judge’s other credibility determinations
because they are based, at least in part, upon the observation of the witnesses’
7
demeanor at the hearing. See Haebe, 288 F.3d at 1300-01. In other words, the
appellant’s specific assertions challenging the credibility determinations are not
persuasive. First, despite his assertion that the administrative judge should
discredit the written statements of all other patients because they probably were
taking medication which may have skewed their observations, there is no reason
to discredit these statements because the administrative judge gave little or no
weight to them. PFR File, Tab 1, at 4; ID at 6 n.5. Second, to the extent that the
appellant points to minor inconsistencies in the Nursing Assistant’s testimony to
attack her credibility, we find that the administrative judge noted such
inconsistencies between all three of the primary witnesses’ testimonies and their
prior statements, but found that these minor inconsistencies did not affect
credibility. See PFR File, Tab 1; ID at 8. Thus, any such minor inconsistencies
do not provide a basis for disturbing the initial decision. See Thomas v. U.S.
Postal Service, 116 M.S.P.R. 453, ¶ 5 (2011). Third, to the extent that the
appellant asserts that any past disciplinary record of the Nursing Assistant
undermines her credibility, we defer to the administrative judge’s consideration
of this factor in making his credibility determination below. See Haebe, 288 F.3d
at 1300-01; see also PFR File, Tab 1; ID at 8. We also do not consider any
additional allegations concerning the Nursing Assistant’s purported prior
misconduct that the appellant raises for the first time on review, because he
has not shown that such allegations are based on new evidence. See Banks,
4 M.S.P.R. at 271. Fourth, although the appellant now asserts on review that the
Nursing Assistant was biased against him because he and other coworkers had
complained about her performance to supervisors, PFR File, Tab 1 at 3, we do not
consider this new claim because he did not present this assertion below and
has not presented any evidence or argument in support of this assertion on review,
see Banks, 4 M.S.P.R. at 271. Based on the above, we find no reason to disturb
the administrative judge’s credibility determinations.
8
¶12 In addition, the appellant again challenges the agency’s investigation of the
fighting incident. On review, he asserts, inter alia, that he was never asked to
give a statement during the initial investigation and that the agency did not get
statements from certain witnesses. PFR File, Tab 1 at 1, 3. The agency
responded that it could not get the appellant’s statement during the initial
investigation because he left the scene of the incident, that nothing prevented him
from obtaining additional statements from witnesses, and that it did get his
statement through the Office of the Inspector General. PFR File, Tab 8 at 5-6.
The Board has held that an agency does not have a duty to investigate the
appellant’s misconduct before proposing his removal, but only to make
reasonable inquiries into exonerating facts brought to its attention by an appellant
before removing him. Uske v. U.S. Postal Service, 60 M.S.P.R. 544, 550 (1994),
aff’d, 56 F.3d 1375 (Fed. Cir. 1995). Therefore, the thoroughness or lack of
thoroughness of the agency’s investigation is not a proper basis for not sustaining
the agency’s charge. Id. Consequently, we find this allegation provides no basis
to disturb the initial decision.
¶13 Next, the appellant appears to reassert on review that he acted in
self-defense. PFR File, Tab 1 at 2. The doctrine of self-defense may not be
successfully invoked if the employee raising it was not free from fault in bringing
on difficulty, unless that person retreats in good faith intending to abandon
difficulty that eventually led to aggression. Fuller v. Department of the
Navy, 60 M.S.P.R. 187, 190 (1993), aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table).
We agree with the administrative judge, who correctly found that the appellant
did not have the right to use self-defense during the incident in question and that,
even if he did, he used more force than was reasonable under the circumstances.
ID at 12. The proposing official’s testimony further supports this finding because
she testified that, even if the patient was the aggressor, the appellant should have
used the least amount of force possible to de-escalate the situation. HCD,
Track 1. Therefore, we find that the appellant did not have the right to use
9
self-defense and thus his assertion does not provide a basis for disturbing the
initial decision. See Fuller, 60 M.S.P.R. at 192. Accordingly, we find no reason
to disturb the administrative judge’s decision to sustain the merged charge of
patient abuse based upon his decision to sustain one of the specifications of the
charge. 7 See Miller v. U.S. Postal Service, 117 M.S.P.R. 557, ¶ 17 (2012) (stating
that proof of one or more, but not all, of the supporting specifications of a charge
is sufficient to sustain the charge).
The administrative judge properly sustained the penalty of removal.
¶14 As noted above, the administrative judge sustained the penalty of removal,
deferring to the agency’s penalty determination and finding that the appellant’s
removal was not so excessive as to be an abuse of discretion or otherwise
arbitrary, capricious, or unreasonable. ID at 14-15. On review, the appellant
appears to challenge the penalty determination. PFR File, Tab 1 at 1. Where, as
here, the agency’s charge has been sustained, the Board will review an
agency-imposed penalty only to determine if the agency considered all of the
relevant Douglas factors and exercised management discretion within tolerable
limits of reasonableness. 8 Portner v. Department of Justice, 119 M.S.P.R. 365,
¶ 10 (2013). In determining whether the selected penalty is reasonable, the Board
gives due deference to the agency’s discretion in exercising its managerial
function of maintaining employee discipline and efficiency. Id. 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. However, if the deciding official failed to appropriately
7
The agency does not challenge the administrative judge’s finding as to the
inappropriate language specification, and we see no reason to disturb it.
8
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
10
consider the relevant factors, the Board need not defer to the agency’s penalty
determination. 9 Id.
¶15 We find, based upon our review of the administrative judge’s thorough
consideration of the deciding official’s testimony and our consideration of the
record as a whole, that the deciding official considered all of the relevant Douglas
factors and exercised management discretion within tolerable limits of
reasonableness. See Gaines v. Department of the Air Force, 94 M.S.P.R. 527, ¶ 9
(2003) (holding that 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). To the extent that the appellant
asserts self-defense as a mitigating factor, PFR File, Tab 1 at 2, as previously
discussed, we find that the appellant used too much force and did not have the
right to invoke this doctrine, see Fuller, 60 M.S.P.R. at 192. Accordingly, we
agree with the administrative judge’s finding that the penalty of removal was
reasonable. See Hosler v. Veterans Administration, 42 M.S.P.R. 265, 269-70
(1989) (finding that removal from a nursing assistant position was a reasonable
penalty for the sustained charges of physically and verbally abusing a patient,
notwithstanding lack of a past disciplinary record and satisfactory work record for
more than 6 years).
¶16 Finally, we find that the appellant’s remaining assertions constitute mere
disagreement with the initial decision and thus do not provide a basis for
disturbing it. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34
(1980). As a result, we affirm the initial decision in this case.
9
We agree with the administrative judge that the penalty determination is entitled to
deference despite the fact that the charges were merged and both specifications
were not sustained. The Board has long held that where one of the specifications is not
sustained, but the charge itself is sustained, the agency’s penalty determination is
entitled to deference and should be reviewed only to determine if the agency considered
all of the relevant factors and exercised its discretion within the tolerable limits of
reasonableness. Brough v. Department of Commerce, 119 M.S.P.R. 118, ¶ 9 (2013).
11
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
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
12
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. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.