Lisa J. Steg v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LISA J. STEG, DOCKET NUMBER

Appellant, SF-0752-15-0185-I-1

v.

DEPARTMENT OF DEFENSE, DATE: March 7, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bobby Devadoss, Esquire, and Stephanie Bernstein, Esquire, Dallas, Texas,

for the appellant.

Susan D. Hooks, Esquire, St. Louis, 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

sustained the agency’s demotion action. 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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regulation or the 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).

¶2 On review, the appellant first contends that the administrative judge

incorrectly attributed statements to certain agency witnesses. Petition for Review

(PFR) File, Tab 1 at 4-5. She asserts that, contrary to the administrative judge’s

findings: (1) witness C.T. did not state that she was able to see the appellant’s

office from her desk; and (2) witness E.N. did not report that the appellant asked

her if she had Attention Deficit Hyperactivity Disorder (ADHD). Id.; see Initial

Appeal File (IAF), Tab 29, Initial Decision (ID) at 11, 20. The appellant is

mistaken on both points. C.T. did state in her July 16, 2013 declaration that her

office “was across the hall from [the appellant’s] so I was in a position to observe

when she arrived and departed for the day.” IAF, Tab 17, Subtab 6, ¶ 3. 2 Also,

E.N. did report in her July 22, 2015 declaration that the appellant “asked me . . .

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The appellant appears to dispute that C.T. was able to see her desk, but in the absence

of any contradictory evidence, or any indication of bias on C.T’s part, we find the

administrative judge properly credited C.T.’s statement, made under penalty of perjury,

that she was able to visually observe the appellant’s comings and goings. See

Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981).

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to my face if I had ADHD,” and that the appellant “seemed to think it was

humorous.” Id., Subtab 12, ¶¶ 5-6. 3

¶3 The appellant next argues that the administrative judge improperly

discounted documentary evidence that purportedly accounts for the discrepancy

between the work hours she reported on the Performance Labor Accounting

System (PLAS), and the entry and exit times evidenced by security card scans

(recorded on the Recall Access Log) and coworkers’ visual observations. PFR

File, Tab 1 at 6-7. She refers specifically to her July 23, 2015 affidavit and

October 22, 2014 response to the proposal notice, in which she explained:

(1) that her duties regularly required her to “meet with folks and look for

employees” outside of the building; and (2) that it is possible to enter the building

without a badge scan, that there is no policy requiring employees to use their

badges, and that this could be confirmed by “even a cursory review” of the times

recorded for other employees on the Recall Access Log and in PLAS. Id.; see

IAF, Tab 19, Tab 4 at 22-23.

¶4 We find that the administrative judge gave due consideration to the

appellant’s explanations. Concerning the appellant’s claim that her duties

routinely required her to work outside the building, the administrative judge

noted that this claim was uncorroborated by other evidence, and contradicted by

the agency’s contention that the appellant was not authorized to allocate duty

hours to look for employees outside the building. ID at 14-15; see IAF, Tab 4

at 16. The administrative judge further noted that it was inherently unlikely that

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In any event, the specification at issue concerns a separate incident in which the

appellant told E.N. that she was a “case of ADHD gone bad.” IAF, Tab 4 at 34

(Charge 2, Specification 2.a). E.N. reported that incident in both her May 12, 2015

signed statement (incorrectly labeled as a “declaration”) and her July 22, 2015

declaration. IAF, Tab 17, Exhibit 13 at 1 & Subtab 12, ¶ 5. The appellant has not

identified any error in the administrative judge’s decision to credit E.N.’s version of

events. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980)

(explaining that mere disagreement with the administrative judge’s findings and

credibility determinations does not warrant full review of the record by the Board).

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the appellant routinely looked for employees outside the building, given that she

was responsible for managing an office of professionals. ID at 14-15. Under

these circumstances, the administrative judge did not err in declining to credit the

appellant’s claim. See Hillen v. Department of the Army, 35 M.S.P.R. 453,

460-61 (1987) (finding that consistency with other evidence and inherent

improbability are factors in assessing credibility). The record also contains no

evidence to corroborate the appellant’s claim that it was unnecessary to use her

badge to enter the building, and in any case, the agency did not rely exclusively

on the badge scans recorded on the Recall Access Log, but also provided

statements and contemporaneous notes by agency witnesses who observed that the

appellant did not appear to be working full hours. IAF, Tab 17, Subtabs 1, 5-6,

Tab 24. In sum, we discern no error in the administrative judge’s finding that the

appellant did not work the hours she recorded in PLAS. 4

¶5 The appellant next argues that the administrative judge should have found,

without reopening the record, that the agency violated her due process rights

because the deciding official considered ex parte information in making his

decision. PFR File, Tab 1 at 7-9. An employee’s constitutional due process

rights may be violated if a deciding official considers new and material

information, whether in assessing the charges or deciding on a penalty. Ward v.

U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011). In determining whether to

find a due process violation occurred, the Board must consider the facts and

circumstances of each particular case. Stone v. Federal Deposit Insurance

Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999). Among the factors to be

considered are whether: (1) the additional material merely introduced

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Nor do we discern any error in the administrative judge’s finding that the appellant

knowingly supplied wrong information with the intent of defrauding the agency for her

own private gain, i.e., to receive pay for hours she did not work. ID at 16. We find

that, because the agency established the elements of a falsification charge, see Boo v.

Department of Homeland Security, 122 M.S.P.R. 100, ¶¶ 10-12 (2014), the

administrative judge correctly sustained the charge of Falsification of Time Sheets.

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“cumulative” information or new information; (2) the employee knew of the error

and had a chance to respond to it; and (3) the information was of the type likely

to result in undue pressure upon the deciding official to rule in a particular

manner. Id. Ultimately, the inquiry is whether the deciding official’s

consideration of the additional material was substantial and so likely to cause

prejudice that no employee can fairly be required to be subjected to a deprivation

of property absent an opportunity to respond. Id. In determining whether a due

process violation occurred, there is no basis for distinguishing between

information provided to the deciding official by another source and information

personally known by the deciding official. Lopes v. Department of the Navy,

116 M.S.P.R. 470, ¶¶ 10-13 (2011).

¶6 In his July 21, 2015 declaration, included in the agency’s close of record

submission, the deciding official devoted several paragraphs to discussing his

experience of the appellant’s performance and conduct in her previous position as

an Administrative Contracting Officer (ACO). IAF, Tab 17, Subtab 2 at 2-3. In

particular, he recalled that after a claims dispute had arisen with a contractor, the

appellant had been uncooperative and nonchalant about helping others who were

trying to support her actions. Id. He explained that he raised the issue because it

“colored [his] perception of her professionalism.” Id. at 3. He also recounted

that when the appellant had transferred to the Los Angeles office through a

hardship request, two of his subordinate employees informed him that they had

“encountered some difficulty with [the appellant’s] cooperativeness and

experienced some untruthfulness on her part” when she was an ACO. Id.

¶7 Although the deciding official did not explicitly refer to the appellant’s

prior service as an ACO in the decision letter, or otherwise admit to considering it

in his decision, the record indicates he did consider the appellant’s credibility,

trustworthiness, and professionalism in making his decision. For example, in

assessing the agency’s second charge, he considered the appellant’s credibility

and trustworthiness in finding that her various explanations were unworthy of

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credence. IAF, Tab 4 at 9-10. Additionally, in assessing the Douglas penalty

factors the deciding official referenced the appellant’s professionalism, trust, and

integrity. Id. at 10-20. Given the evidence that was available before the record

was reopened, there was an open question as to whether the deciding official

considered the appellant’s performance and conduct as an ACO in making

his decision.

¶8 By contrast, the proposal notice made no mention of the appellant’s prior

service as an ACO. IAF, Tab 4 at 32-38. Hence, as the administrative judge

stated in his order reopening the record, “[i]t does not appear that the proposal

notice put the appellant on notice that the deciding official’s assessment of her

conduct and performance as an ACO . . . might be something he would consider

in deciding the proposed demotion if, indeed, he did.” IAF, Tab 25 at 4

(emphasis added). Under these circumstances, it was appropriate for the

administrative judge to reopen the record sua sponte to permit the parties to

submit additional evidence and argument on the due process issue. See Powers v.

Department of the Treasury, 86 M.S.P.R. 256, ¶¶ 8, 10 n.3 (2000) (approving an

administrative judge’s adjudication of a due process violation sua sponte).

¶9 The appellant suffered no harm as a result of the administrative judge’s

decision to reopen the record. To the contrary, he provided her an opportunity

she would not have otherwise had to meet her burden of proving the affirmative

defense by preponderant evidence. See 5 C.F.R. § 1201.56(a)(2)(iii). However,

we discern no error in the administrative judge’s decision to credit the deciding

official’s supplemental declaration, in which he stated under penalty of perjury

that he had mentioned the appellant’s conduct and performance as an ACO only

as background information, and did not consider it in assessing her credibility as

to the charges or in determining an appropriate penalty. IAF, Tab 27; see

Norris v. Securities & Exchange Commission, 675 F.3d 1349, 1354 (Fed. Cir.

2012) (“A deciding official’s knowledge of an employee’s background only raises

due process . . . concerns where that knowledge is a basis for the deciding

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official’s determinations on either the merits of the underlying charge or the

penalty to be imposed.”).

¶10 Finally, the appellant argues that the agency committed harmful procedural

error, as opposed to a constitutional due process violation, by failing to comply

with the requirements of 5 C.F.R. § 752.404(b)(1). PFR File, Tab 1 at 8-9. The

appellant did not raise this affirmative defense below, and she has not shown that

it is based on new and material evidence that was not previously available despite

her due diligence. Accordingly, we give it no further consideration. See Banks v.

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

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

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).

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 U.S. 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 U.S. Code, at our

website, http://www.mspb.gov/appeals/uscode.htm. Additional information is

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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 an appeal to

the U.S. 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.