The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICOLE S. ELMORE, DOCKET NUMBER
Appellant, CH-0752-16-0416-I-1
v.
DEPARTMENT OF VETERANS DATE: February 2, 2023
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Tinita Cole, Dayton, Ohio, for the appellant.
Demetrious A. Harris, Esquire, and Anita Carmichael, Dayton, Ohio,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal. For the reasons discussed below, we GRANT
the agency’s petition for review, VACATE the initial decision, and REMAND 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 On November 9, 2015, the parties entered into a settlement agree ment
resolving the appellant’s prior removal appeal. Initial Appeal File (IAF), Tab 4
at 6-9. Pursuant to the terms of the settlement agreement, the agency agreed, in
relevant part, to rescind the appellant’s removal and to reinstate her to the
position of Medical Support Assistant (MSA) after she served a 5 -day suspension.
Id. at 8. In exchange, the appellant agreed to the provisions of a Last Chance
Agreement (LCA), which provided, in relevant part, that she would adhere to
Section IX of the agency’s Employee Handbook, VA Directive 5011 (Hours of
Duty and Leave), and all other policies, procedures, and processes reg arding
interactions with staff and veterans. Id. at 6, 9. The appellant further agreed that
her failure to comply with the terms and conditions of the LCA would result in
her immediate removal and that she waived all appeal rights in connection with a
removal pursuant to the LCA. Id.
¶3 On January 5, 2016, the agency reinstated the appellant. IAF, Tab 1 at 8.
On March 24, 2016, the Program Director of the Mental Health Service (Program
Director) notified the appellant that she was being charged with 2 h ours of
absence without leave (AWOL) in connection with an unauthorized absence from
her workstation between 8:30 a.m. and 10:30 a.m. on March 1, 2016. IAF, Tab 4
at 11. He notified her that he considered her response that she was, in fact, at her
workstation between 8:00 a.m. and 9:45 a.m. on that date, but decided to proceed
with the charge because her response was inconsistent with the statements of two
other employees and his own observation. Id. at 11, 16. As a result, the agency
reinstated the appellant’s prior removal and removed her from her position
effective May 13, 2016. IAF, Tab 1 at 8-9.
3
¶4 The appellant appealed her removal to the Board, arguing that she did not
violate the LCA. Id. at 1-2, 14-15. After holding the appellant’s requested
hearing, the administrative judge issued an initial decision finding that the
appellant proved that she did not violate the terms of the LCA and, therefore, that
the appeal rights waiver was not enforceable. IAF, Tab 24, Initial Decision (ID)
at 11-12. Accordingly, she reversed the appellant’s removal. ID at 12.
¶5 The agency petitioned for review of the initial decision, and the appellant
responded in opposition to the agency’s petition for review. Petition for Review
(PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board lacks jurisdiction over an action taken pursuant to an LCA in
which an appellant waives her right to appeal to the Board. Bruhn v. Department
of Agriculture, 124 M.S.P.R. 1, ¶ 9 (2016). An appellant may establish that an
appeal rights waiver should not be enforced against her by showing, as relevant
here, that she complied with the LCA. Id. If an appellant raises a nonfrivolous
allegation that she complied with an LCA, she is entitled to a jurisdictional
hearing to determine whether she, in fact, complied with the LCA. 2 Id. At the
hearing, the appellant must prove jurisdiction by a preponderance of the
evidence. 3 Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344
(Fed. Cir. 2006)(en banc); 5 C.F.R. § 1201.56(b)(2)(i)(A).
¶7 Here, as noted above, the appellant argued that she did not breach the LCA
because she was not AWOL, as alleged by the agency. IAF, Tab 1 at 15, Tab 4
at 2. In support of this claim, she submitted her March 9, 2016 response to the
2
Nonfrivolous allegations of Board jurisdiction are allegations of fact that, if proven,
could establish a prima facie case that the Board has jurisdiction over the matter at
issue. 5 C.F.R. § 1201.4(s).
3
A preponderance of the evidence is the 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).
4
Program Director regarding the potential AWOL charge, in which she stated that
she was at her desk between 8:00 a.m. and 9:45 a.m., at which time she took her
break, and returned to her desk at 10:07 a.m. IAF, Tab 4 at 16. The appellant
explained that, during her break, she was assisting a veteran in the hallway and
called an agency Social Worker to further assist the veteran. Id. She stated that
she and the veteran met the Social Worker in the hallway and talked to him
together for approximately 15 minutes. Id. She also submitted a number of
witness statements, some of which supported her version of events and some of
which supported the agency’s position that the appellant was not at her work
station for 2 hours, as well as documents showing work she performed at
8:35 a.m., 8:37 a.m., 10:28 a.m., 10:36 a.m., 10:46 a.m., and 11:00 a.m. on the
date in question. Id. at 1-2, 12-15, 17-20, 25-47. Because of the conflicting
evidence, the administrative judge found that it was appropriate to hold a
jurisdictional hearing to determine whether the appellant breached the LCA by
being away from her workstation for 2 hours on March 1, 2016, in violation of
agency policies. IAF, Tab 7.
¶8 At the hearing, the Program Director conceded that the appellant’s 2 hours
of AWOL should be reduced to account for her authorized 15 -minute break, but
he maintained that she was away from her desk between 8:30 a.m. and 10:30 a.m.
and that her duties required her to be at her desk. Hearing Transcript (HT)
at 7-14 (testimony of the Program Director). He testified that he was in and out
of the workstation area during that period and noticed for the first time at around
8:30 a.m. that the appellant was not at her desk. HT at 8 (testimony of the
Program Director). He also testified that, because the Mental Health Clinic was
understaffed that morning, he called T.D., another MSA, to fill in and that she
arrived on the unit at about 9 a.m. Id. According to the Program Director, T.D.
informed him at 10 a.m. that the appellant had not been to the unit since she
arrived. Id. He further testified that he personally saw the appellant return to the
unit at around 10:30 a.m. Id. at 9.
5
¶9 T.D. confirmed the Program Director’s testimony, testifying that she arrived
on the unit at approximately 9 a.m., that the appellant was not at her desk at that
time, and that the appellant did not return to the unit until ap proximately
10:30 a.m. HT at 33-35 (testimony of P.D.). Her earlier report of contact
similarly stated that she came to the Mental Health Clinic at around 9 a.m. on
March 1, 2016, to cover the staffing shortage and that the appellant was not there
until approximately 10:30 a.m. or 10:45 a.m. IAF, Tab 4 at 14.
¶10 The agency’s Suicide Prevention Case Manager (Case Manager) testified
that she saw the appellant in the hallway chatting with two men at 8:25 a.m.—
before her daily 8:30 a.m. meeting—and saw her again chatting with the same
two men near a stairwell after the meeting. HT at 25, 27-28 (testimony of the
Case Manager). Her earlier written report of contact provided the same
information, but clarified that she saw the appellant talking to the two men near
the elevator after her meeting at approximately 10:45 a.m. on the date in question
IAF, Tab 4 at 13. She further testified that she saw T.D. in the Mental Health
Clinic that morning. HT at 28 (testimony of the Case Manager).
¶11 Contrary to the testimonies of the Program Director, T.D., and the Case
Manager, the appellant testified that she was at her duty station between 8 a.m.
and 9:45 a.m., that she took her authorized break at 9:45 a.m., and that she
returned to her duty station at 10:07 a.m. on March 1, 2016. HT at 21-23
(testimony of the appellant). She testified that, contrary to the testimony of the
agency witnesses, T.D. did not work in the Mental Health Clinic that morning.
Id.
¶12 A Clinical Nurse Specialist testified that, as stated in her March 9, 2016
report of contact, she saw the appellant at her duty station at approximately
9:30 a.m., which she remembered because the appellant said “hello” to a patient
she had just seen. HT at 18 (testimony of the Clinical Nurse Specialist); IAF,
Tab 4 at 20.
6
¶13 In the initial decision, the administrative judge found that all of the
witnesses testified in a straightforward and truthful manner , but concluded that
the agency’s evidence was inconsistent with the record as a whole and that the
evidence supporting the appellant’s position was more persuasive. ID at 9 -11.
Specifically, she found that the appellant’s version of events was supported by the
hearing testimony of the Clinical Nurse Specialist who testified that she saw the
appellant at her workstation at 9:30 a.m. and the unsworn written statements of
three other MSAs, the Social Worker, and the veteran. Id. The written
statements of two MSAs confirmed the appellant’s statement that T.D. did not in
fact work on the unit on the morning in question, further noting that T.D. did not
report to the unit until approximately 3:50 p.m. 4 IAF, Tab 4 at 17-18. One of
these statements also confirmed the appellant’s testimony that the appellant left
for a break at approximately 9:45 a.m. with a veteran and that she was not gone
for 2 hours. Id. at 17. The Social Worker’s written statement confirmed the
appellant’s earlier written statement regarding her meeting with the veteran,
stating that she called him at 9:58 a.m., he went to meet her and the veteran on
the stairway in front of the service elevator, and he spoke to them for
approximately 12 to 15 minutes. Id. at 15. The veteran’s written statement
indicated that he spoke to the appellant at the front desk for approximately
5 minutes after making his follow-up appointment. Id. at 19. He stated that the
appellant informed someone that she was going to take her break and that she
walked outside to the waiting area with him, talked to him for approximately 3 to
4 minutes, and called another employee to assist him. Id. He stated that they
walked back to the stairway to meet the other employee and they spoke to him for
approximately 10 minutes before the appellant left. Id. Another MSA submitted
4
As noted above, the Program Director testified that he called T.D. on the morning of
March 1, 2016, and asked her to cover a staffing shortage on the unit. HT at 8
(testimony of the Program Director). He further testified that T.D. arrived on the unit
at 9 a.m. Id.
7
a written statement indicating that she inquired about the appellant’s whereabouts
at approximately 9:45 a.m. or 10 a.m. on March 1, 2016, and that, upon the
appellant’s return, she stated that she had been on a break. Id. at 12.
¶14 The administrative judge did not credit the hearing testimony of the Case
Manager, finding that, although there was no evidence of bias or motivation to lie
on her part, her testimony that she saw the appellant talking to the two men at
8:25 a.m. and 10:45 a.m. on March 1, 2016, conflicted with the “uncontroverted
documentation” showing that the appellant was at her desk performing her duties
at 8:35 a.m., 8:37 a.m., 10:28 a.m., 10:36 a.m., and 10:46 a.m. ID at 10. She also
found that the Case Manager’s testimony—that she recalled hearing other MSAs
wondering about the appellant’s whereabouts—was inconsistent with the
statements of the two other MSAs who indicated that, except for the period
between 9:45 a.m. and 10 a.m., they were aware of the appellant’s whereabouts.
Id.
¶15 The administrative judge additionally found that, although there was no
evidence or motivation to lie on the part of T.D., she could not credit her
statements in light of significant, contradictory evidence in the record. ID at 11.
In particular, the administrative judge found that T.D.’s testimony that she
arrived at the Mental Health Clinic at 9 a.m. on March 1, 2016, was contradicted
by the appellant and two other MSAs who all stated that T.D. did not work on the
unit that morning. Id. The administrative judge also appeared to find that T.D.’s
testimony that the appellant did not return to the unit until 10:30 a.m. or
10:45 a.m. conflicted with the Program Manager’s testimony that she informed
him that the appellant had returned at 10 a.m. ID at 10-11.
¶16 In light of these findings, the administrative judge concluded that the
appellant was away from her desk from approximately 9:45 a.m. to approximately
10:07 a.m. on the date in question, a time period that exceeded her authorized
break by 7 minutes. ID at 11. The administrative judge declined to sustain the
charge of AWOL for a 7-minute period and, by extension, to find that the
8
appellant violated the LCA. Id. She concluded that, although the appellant may
have minimally exceeded her authorized break period, the record reflects that her
whereabouts were known, that she was still on her unit, and that she was assisting
a veteran. Id. Therefore, the administrative judge found that the appellant’s
conduct did not violate the agency’s policy and that she did not breach the LCA.
Id.
¶17 On review, the agency argues that the administrative judge made erroneous
credibility determinations, improperly credited the written statements over
hearing testimony, erroneously referred to some written statements as testimony,
failed to account for the fact that the documentation showing when the appellant
performed duties also shows that she did not perform any duties between
8:37 a.m. and 10:28 a.m., and misconstrued the hearing testimony of the Program
Director. PFR File, Tab 1 at 6-12.
¶18 In resolving credibility issues, the trier of fact must identify the factual
questions in dispute, summarize the evidence on each disputed question, state
which version she believes, and explain in detail why she 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). The Board must defer to
an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on observing the demeanor of witnesses testifying at a
hearing, and 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). Thus, the Board may overturn demeanor-based credibility
determinations when the administrative judge’s findings are incomplete,
9
inconsistent with the weight of the evidence, and do not reflect the record as a
whole. Rapp v. Office of Personnel Management, 108 M.S.P.R. 674, ¶ 13 (2008).
¶19 As noted above, the administrative judge found that all of the agency
witnesses testified in a straightforward and truthful manner but that the evidence
supporting the appellant’s version of events was more persuasive. ID at 9.
Although we defer to the administrative judge’s determination regarding the
demeanor of each witness, we agree with the agency that the administrative judge
incorrectly represented the Program Director’s hearing testimony, which appeared
to factor into her credibility determinations. Specifically, the administrative
judge found that T.D.’s hearing testimony that the appellant did not return to the
unit until 10:30 a.m. or 10:45 a.m. was contradicted by the Program Manager’s
testimony that T.D. informed him that the appellant returned at 10 a.m. ID at 10-
11. The Program Manager actually testified, however, that T.D. informed him at
10 a.m. that she had not yet seen the appellant and that he noticed the appellant
return to the unit at 10:30 a.m. HT at 9 (testimony of the Program Director). He
did not testify that T.D. informed him at 10 a.m. that the appellant had returned.
Id.
¶20 In addition, we agree with the agency that the administrative judge failed to
properly weigh the testimonial and documentary evidence of record. Specifically,
in crediting the appellant’s version of events over the agency’s version of events,
the administrative judge relied heavily on the unsworn written statements of
individuals who did not testify at the hearing. ID at 9 -11; IAF, Tab 4 at 12, 15,
17-19. Although hearsay evidence is admissible in Board proceedings,
assessment of the probative value of hearsay evidence necessarily depends on the
circumstances of each case. Adamsen v. Department of Agriculture, 116 M.S.P.R.
331, ¶ 16 (2011); Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-84
(1981). The Board generally evaluates the probative value of hearsay evidence
by considering various factors that include the availability of persons with
firsthand knowledge to testify at the hearing, whether the out-of-court statements
10
were sworn, whether the declarants were disinterested witnesses to the events and
whether their statements were routinely made, the consistency of the out-of-court
statements with other statements and evidence, whether there is corroboration or
contradiction in the record, and the credibility of the out -of-court declarant.
Adamsen, 116 M.S.P.R. 331, ¶ 16; Wallace v. Department of Health & Human
Services, 89 M.S.P.R. 178, ¶¶ 6-11 (2001), review dismissed, 41 F. App’x 455
(Fed. Cir. 2002). Here, however, the administrative judge failed to consider any
of these factors in crediting the unsworn out-of-court written statements over the
hearing testimony of the agency witnesses. 5 ID at 9-11.
¶21 Moreover, it does not appear that the administrative judge appropri ately
considered or weighed the hearing testimony of the agency witnesses. Generally,
live testimony is more probative than an out-of-court statement. Social Security
Administration v. Whittlesey, 59 M.S.P.R. 684, 692 (1993), aff’d, 39 F.3d 1197
(Fed. Cir. 1994) (Table); Dubiel v. U.S. Postal Service, 54 M.S.P.R. 428, 432
(1992) (stating that the probative value of unsworn hearsay statements regarding
facts at issue is generally reduced when contradicted by live testimony regarding
the same matter); Robinson v. Department of Health & Human Services,
39 M.S.P.R. 110, 115 (1988) (finding that hearsay evidence may not be
sufficiently probative, in light of contradictory live testimony, to sustain an
agency’s burden by preponderant evidence). We agree with the administrative
judge that the Case Manager’s testimony that she saw the appellant at 8:25 a.m.
and 10:45 a.m. may be entitled to less weight because it conflicts with the
5
The record reflects that the administrative judge granted all of the appellant’s
requested witnesses, including the veteran and the Social Worker. IAF, Tab 12. The
appellant subsequently withdrew her request for the Social Worker to testify at the
hearing. IAF, Tab 18 at 3. The veteran, although approved as a witness, did not testify
at the hearing. HT at 3. It does not appear that either party called as witnesses the
three MSAs whose written statements supported the appellant’s version of events. IAF,
Tab 12 at 3. It is unclear from the record, however, whether any of the individuals who
submitted written statements in support of the appellant’s version of events were
unavailable to testify at the hearing.
11
documentation showing that the appellant performed her duties 8:35 a.m. and
10:26 a.m. on March 1, 2016. IAF, Tab 4 at 25-38, 44. However, the
administrative judge did not explain why the unsworn written statements are
entitled to more weight than the straightforward hearing testimony of the Program
Director and T.D, which, as discussed above, are consistent with each other. 6 ID
at 9-11.
¶22 In light of the foregoing, we find that remand is necessary to allow further
development of the record and, if appropriate, a supplemental hearing. In
addition, the administrative judge should order the agency to submit t ime and
attendance records, if available, or other evidence showing when T.D. worked on
March 1, 2016. The administrative judge then should explore the issues
identified above, determine the appropriate weight that each type of evidence is
due, and issue a new initial decision fully addressing all of the record evidence.
ORDER
¶23 For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
6
As correctly noted by the agency, the administrative judge improperly referred to the
written statements of two MSAs as testimony. ID at 10 (noting that the other MSAs
both testified that they were aware of the appellant’s whereabouts); IAF, Tab 4 at 12,
17. It is unclear, however, whether this error factored into her credibility analysis.