The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHANIE K. MITCHELL, DOCKET NUMBER
Appellant, DC-0752-15-0645-I-1
v.
DEPARTMENT OF VETERANS DATE: May 27, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
M. Jefferson Euchler, Esquire, Virginia Beach, Virginia, for the appellant.
Timothy O’Boyle, Hampton, Virginia, 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 the agency action removing the appellant. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
or 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 The appellant was removed from her position as a Certified Nursing
Assistant, GS-0621-05, at the Department of Veterans Affairs Medical Center in
Richmond, Virginia, on two charges, Patient Abuse and Unauthorized Absence.
Initial Appeal File (IAF), Tab 3 at 10-13, 22. The appellant worked at the
agency’s Community Living Center on a care unit that serves patients suffering
from such illnesses as dementia, schizophrenia, and Alzheimer’s disease. IAF,
Tab 22, Hearing Compact Disc (HCD) (testimony of C.B.). The sustained charge
of Patient Abuse reads as follows:
On June 28, 2014, at approximately 10:30 a.m., you were witnessed
by Patient N[.] in the empty bed next to him. Patient N[.] told you to
get out and you then put your hand over his mouth. Patient N[.] then
bit your finger and, in response, you slapped him in the face.
IAF, Tab 3 at 22. Patient N. is schizophrenic and suffers from
dementia. Id. at 36. He is confined to his room and is largely unable to care for
himself. Id. at 78; HCD (testimony of appellant). He is known to be a difficult
and, at times, verbally abusive patient, especially towards African American staff
members like the appellant, but he has no history of committing acts of violence.
See, e.g., IAF, Tab 3 at 60-61, 74, 79.
3
¶3 On appeal, the appellant did not assert any affirmative defenses and did not
dispute the issue of nexus. IAF, Tab 1 at 3, Tab 13 at 4, Tab 21 at 2. After a
hearing, IAF, Tab 21 at 2, Tab 22, the administrative judge issued a decision that
sustained the first charge and declined to sustain the second charge, IAF, Tab 25,
Initial Decision (ID) at 16-18. The administrative judge further found that the
deciding official properly considered all relevant factors and that the penalty
imposed for the one sustained charge did not exceed the bounds of
reasonableness. 2 ID at 18‑20.
¶4 The appellant filed a petition for review. Petition for Review (PFR) File,
Tab 1. She contends on review that the sustained charge “appear[s] to be based
on wild accusations of the dementia patient with no corroboration.” Id. at 6. She
asserts that, because no one else was present in the room when the incident
occurred, the agency “attempted to prove the case through the hearsay testimony
of other employees who relayed a description of what the patient told them.” Id.
at 6-7. She argues that the administrative judge would not have credited direct
testimony from the patient because “the origin of the testimony would never be
considered credible,” and he thus erred in accepting the hearsay testimony. Id.
at 7-8. She further argues that her own testimony was more credible than that of
the patient’s because she was a long-term employee with a good record. Id.
at 6-7.
¶5 The appellant also contends that witness testimony stating that the patient
bore slap marks on his face was contradicted by the testimony of the police
officer sent to investigate the incident and that the marks did not appear in the
pictures he took. Id. She asserts that the administrative judge attempted to
discredit the police officer’s testimony because it did not corroborate that of the
agency’s other witnesses. Id. at 7. She further argues that only one witness,
2
The appellant does not appear to challenge the administrative judge’s findings
regarding the penalty on review, and we therefore do not address those
determinations here.
4
C.B., the charge nurse for the unit, testified that there appeared to be a hand print
on the patient’s face and that no other witness confirmed that. Id.
¶6 Hearsay evidence may be accepted as preponderant evidence in Board
proceedings, even without corroboration, if the circumstances lend it credence.
Kewley v. Department of Health & Human Services, 153 F.3d 1357, 1364
(Fed. Cir. 1998). An assessment of the probative value of hearsay evidence
necessarily depends on the circumstances of the case. Borninkhof v. Department
of Justice, 5 M.S.P.R. 77, 83‑87 (1981). The following factors affect the weight
to be accorded hearsay evidence: (1) the availability of persons with firsthand
knowledge to testify at the hearing; (2) whether the statements of the out-of-court
declarants were signed or in affidavit form, and whether anyone witnessed the
signing; (3) the agency’s explanation for failing to obtain signed or sworn
statements; (4) whether declarants were disinterested witnesses to the events, and
whether the statements were routinely made; (5) the consistency of the
declarants’ accounts with other information in the case, internal consistency, and
their consistency with each other; (6) whether corroboration for statements can
otherwise be found in the agency record; (7) the absence of contradictory
evidence; and (8) the credibility of the declarant when he made the statement
attributed to him. Id. at 87.
¶7 Although the appellant dismisses Patient N.’s statement as the “wild
accusations of [a] dementia patient,” PFR File, Tab 1 at 6, she points to no
specific precedent, Board or otherwise, suggesting that a statement from a
dementia patient inherently lacks credibility, nor did the parties reach any
stipulation as to Patient N.’s credibility. However, Patient N. was the only
witness to the appellant’s actions in his room. Applying the considerations set
forth above in Borninkhof, the administrative judge noted the consistency in the
testimony of witnesses who spoke with or observed Patient N. after the incident.
ID at 14-15. C.B. and R.H., two nurses who examined Patient N., gave similar
testimony regarding his account of events and his condition, including the fact
5
that his face was redder on one side than the other and that he was distressed,
untidy, and covered with feces. HCD (testimony of C.B., R.H.). Another nurse,
A.T., noticed that his face was “flush” or “reddish,” and an agency police officer,
Officer W., stated that the patient’s face and neck were “ruddy” or “red,” though
he noticed no marks or bruising there. HCD (testimony of A.T., Officer W.).
The administrative judge also noted that the nurses who examined Patient N.
reported that they found him “focused,” “lucid,” “completely oriented,” and
“coherent” when he made his statement. ID at 15. The administrative judge
explained that most of these individuals cared for Patient N. often and were
familiar with his reactions to various staff members. ID at 16. The
administrative judge observed that agency witnesses testified that Patient N.’s
account of the incident remained consistent throughout the day despite
questioning by several agency employees. ID at 15-16. He further observed that
the appellant did not introduce any evidence suggesting that these witnesses had
any motive to lie or fabricate testimony. ID at 16.
¶8 The administrative judge also found that other circumstantial evidence
supported a finding that Patient N.’s account of the incident was plausible. ID
at 15. For example, the administrative judge explained that unrefuted testimony
established that the appellant arrived late for work that day, looking “sleepy,”
“tired,” “groggy,” and somewhat “impaired.” Id. That testimony was
corroborated by the appellant’s testimony that she had worked a shift ending at
midnight the day before. HCD (testimony of the appellant). The appellant also
told her colleagues that she was not feeling well and felt very tired. HCD
(testimony of C.B.).
¶9 The administrative judge additionally made extensive demeanor-based
credibility findings regarding the testimony of nurses who examined and spoke
with Patient N. on the date of the incident. ID at 13-16. He found the nurses’
statements to be consistent with each other and with their prior written statements
and depositions. ID at 14; see Hillen v. Department of the Army, 35 M.S.P.R.
6
453, 458 (1987) (enumerating factors for the administrative judge to consider in
making credibility findings, including prior inconsistent statements and the
contradiction or consistency of testimony with other record evidence). Based on
witness demeanor, he found their testimony to be “sincere” and “unrehearsed,”
and he thus adjudged them to be “plausible” witnesses. ID at 14; see Haebe v.
Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the
Board must defer to an administrative judge’s credibility determinations when
they are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing, and the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so) . The administrative
judge stated that he detected no evidence of bias or motivation to fabricate
testimony. ID at 14; see Hillen, 35 M.S.P.R. at 458 (holding that the
administrative judge should consider the witness’s bias or lack of bias).
¶10 By contrast, the administrative judge found Officer W.’s testimony to be
less than completely reliable because it was somewhat inconsistent with the
written statements he had given earlier, and he appeared to have difficulty
recalling certain factual details about the incident, including his own initial
assessment of whether the incident rose to the level of criminal assault. ID at 14.
The administrative judge found the appellant’s version of events to be unreliable
and, at times, “nonsensical under the circumstances.” ID at 15. He gave as an
example of the latter the appellant’s testimony that she had come into Patient N.’s
room without her cleaning supplies because she first wanted to assess his
condition, and, although she recognized that he badly needed a bath and a clean
diaper, she first tried to remove dried milk from around his mouth. Id. Based on
her demeanor, the administrative judge also noted that her testimony “appeared
somewhat rehearsed and mechanical.” ID at 15 n.28; see Haebe, 288 F.3d
at 1301. The appellant has not offered any reason for the Board to overturn these
credibility assessments, and we likewise have not found any such reason. See
Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004) (holding
7
that the Board may overturn an administrative judge’s demeanor-based credibility
determinations when the administrative judge’s findings are incomplete,
inconsistent with the weight of the evidence, and do not reflect the record as
a whole).
¶11 Finally, the first Borninkhof factor pertains to the availability of the
declarant, Borninkhof, 5 M.S.P.R. at 87, and neither party here called Patient N.
to testify. IAF, Tab 11 at 6-7, Tab 13 at 5. Although the reasons Patient N.
was not called may be self-evident from the record, the administrative judge cited
two factually similar cases in which the Board gave hearsay evidence from
mentally impaired patients less weight than live testimony from appellants. ID
at 17. For example, in Bradley v. Department of Veterans Affairs, 78 M.S.P.R.
296, 300-02 (1998), the appellant gave strong, unrefuted testimony that was
sometimes corroborated by other evidence. On review, the Board found her
testimony to be more plausible than that of the declarant. 3 Id. We have found no
precedent, however, stating that a mentally impaired witness by definition cannot
testify credibly. Here, the administrative judge found Patient N.’s account
believable based on the credible testimony of agency witnesses coupled with the
implausibility of the appellant’s account of the incident. ID at 17. We agree with
the administrative judge’s findings. 4
¶12 We thus find that the administrative judge considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions on
credibility. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997);
Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
3
The administrative judge also cited Robinson v. Department of Health & Human
Services, 39 M.S.P.R. 110, 112, 115-18 (1988), in which the Board reversed the
administrative judge’s finding that the hearsay testimony of two mentally incompetent
patients was more credible than the appellant’s live testimony. ID at 17.
4
Among other things, the agency’s internal investigative report states that, although the
appellant’s “mental status varies greatly” from day to day, the witnesses who spoke
with him after the incident found his account to be credible. IAF, Tab 3 at 36.
8
(1987). On review, the appellant simply argues with the administrative judge’s
credibility determinations, though she presents no legitimate argument
challenging the initial decision. Weaver v. Department of the Navy, 2 M.S.P.R.
129, 133‑34 (1980) (holding that mere disagreement with the administrative
judge’s findings and credibility determinations does not warrant full review of the
record by the Board). Accordingly, we affirm the initial decision.
¶13 Based on the foregoing, we affirm the initial decision sustaining 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 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 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
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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.