Opinion

Justin Smith v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jun 30, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JUSTIN P. SMITH, DOCKET NUMBER

Appellant, PH-0752-17-0139-I-1

DEPARTMENT OF VETERANS DATE: June 30, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kristyn M. Houchen, Esquire, Ventura, California, for the appellant.

Shelly S. Glenn, Baltimore, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed the appeal of his removal for lack of jurisdiction, as he failed to

demonstrate that the waiver of Board appeal rights in the last chance agreement

(LCA) that he entered into with the agency should not be enforced. Generally, we

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

grant petitions such as this one only in the following circumstances: the initial

decision contains erroneous findings of material fact; the initial decision is based

on an erroneous interpretation of statute 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. 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 In January 2015, the agency proposed to remove the appellant from the

Federal service due to conduct unbecoming, loafing while on duty, and lack of

candor. Initial Appeal File (IAF), Tab 5 at 53-55. On May 1, 2015, the appellant

voluntarily entered into an LCA with the agency wherein he admitted to the

charges of misconduct in the proposal and agreed that his removal was the

traditional penalty for his misconduct. Id. at 51-52. Through the LCA, the

agency agreed to hold the decision to remove the appellant in abeyance in

exchange for him not engaging in any act of sustained misconduct over a 2-year

period from the May 1, 2015 effective date of the agreement. Id. In the event

that the appellant violated the LCA by committing an act of sustained misconduct

and the agency issued the removal decision held in abeyance, the ap pellant agreed

to waive his rights to appeal such a removal to the Board. Id.

¶3 On May 13, 2016, the appellant and his first-line supervisor engaged in a

verbal altercation in the presence of another employee and a customer of the

office. IAF, Tab 5 at 30-32, 35, 37; Hearing Compact Disc (HCD) (testimony of

customer), (testimony of the employee who witnessed the altercation). During

this altercation, the appellant used profanity and raised his voice. IAF, Tab 5

at 30-32, 35, 37; HCD (testimony of customer), (testimony of the employee who

witnessed the altercation). The customer who witnessed this incident felt nervous

and uncomfortable. IAF, Tab 5 at 37; HCD (testimony of customer). The agency

determined that since the appellant’s behavior constituted misconduct, he was in

breach of the LCA. IAF, Tab 5 at 19-20. As a result, the agency reinstated the

removal decision held in abeyance from 2015 and the appellant’s removal became

effective December 13, 2016. Id.

¶4 The appellant filed an initial appeal with the Board over his removal

claiming that he did not violate the LCA. IAF, Tab 1 at 7. After holding a

jurisdictional hearing, the administrative judge issued an initial decision

dismissing the appeal for lack of jurisdiction. IAF, Tab 18, Initial Deci sion (ID).

The administrative judge determined that the appellant failed to meet his burden

of proving that the Board has jurisdiction over the appeal of his removal, as he

did not demonstrate that the waiver of appeal rights in the LCA should not be

enforced. ID at 1-9. Further, the administrative judge found that, because the

Board lacked jurisdiction to adjudicate the underlying removal action, it could not

address the appellant’s affirmative defenses. ID at 9. The appellant filed a

petition for review of the initial decision, to which the agency responded in

opposition. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 An appellant bears the burden to establish by preponderant evidence that his

appeal is within the Board’s jurisdiction. 2 5 C.F.R. § 1201.56(b)(2)(i)(A). The

Board generally lacks jurisdiction over an action taken pursuant to an LCA in

which an appellant waives his rights to appeal to the Board. Willis v. Department

of Defense, 105 M.S.P.R. 466, ¶ 17 (2007). To establish that a waiver of appeal

rights in an LCA should not be enforced, an appellant must show one of the

following: (1) he complied with the LCA; (2) the agency materially breached the

LCA or acted in bad faith; (3) he did not voluntarily enter into the LCA; or

(4) the LCA resulted from fraud or mutual mistake. 3 Id.

¶6 On review, the appellant claims that the administrative judge erred in not

considering the arguments that he raised regarding his first -line supervisor. PFR

File, Tab 1 at 7-8, 11-12. The appellant alleges that his former supervisor is to

blame for his conduct since she provoked him, and that as a supervisor, the

agency needed to hold her to a higher standard. Id. The appellant reasons that

the agency should not have disciplined him for his conduct, as his supervisor only

received an admonishment for her role in the altercation, the lowest form of

discipline. Id. at 8, 11. The appellant then states that the agency violated his due

process rights because, prior to his removal, he did not receive notice that arguing

with his supervisor constituted misconduct. Id. at 9-10.

¶7 These arguments relate to the penalty determination, which the Board will

not consider here due to the lack of jurisdiction over the removal taken pursuant

Preponderant evidence is defined as 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).

At the hearing and on review, the appellant proffered no argument that he

involuntarily entered the LCA or that the LCA resulted from fraud or mutual mistake.

Throughout the adjudication of this appeal, the appellant and the agency showed a

mutual understanding of the terms of the LCA and neither disputed the agreement’s

contents or effect. IAF, Tab 1 at 7, Tab 4 at 4-5, Tab 5 at 8-9, Tab 12 at 4-5, Tab 13

at 4.

to an LCA with a valid waiver of Board appeal rights. See Martin v. Department

of Defense, 70 M.S.P.R. 653, 657 (1996); see also Voss v. U.S. Postal Service,

119 M.S.P.R. 324, ¶ 10 (2013) (remanding an appeal for the administrative judge

to reconsider the reasonableness of the penalty in light of the appellant’s

disparate penalty claim); Wilburn v. U.S. Postal Service, 28 M.S.P.R. 524, 527

(1985) (holding that provocation is a mitigating factor); Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305 (1981) (finding that the clarity with which

the employee was on notice or had been warned about the conduct in question is a

factor to be considered when determining the appropriateness of a penalty). In

any event, an agency is not required to describe in detail all potentially prohibited

employee conduct and subsequent discipline. See Goldstein v. Department of the

Treasury, 62 M.S.P.R. 622, 627 (1994), vacated and remanded on other grounds,

62 F.3d 1430 (Fed. Cir. 1995) (Table); see also Byers v. Department of Veterans

Affairs, 89 M.S.P.R. 655, ¶ 24 (2001) (finding that the agency did not need to

outline every possible example of patient abuse in its training manuals and

seminars).

¶8 The appellant then alleges on review that the administrative judge

considered additional allegations of misconduct, outside of the removal decision,

when finding that he did not comply with the LCA. PFR File, Tab 1 at 12 -13.

The additional allegations that the appellant cites consist of the employee’s

hearing testimony concerning what she witnessed during the May 13, 2016

altercation. Id. The administrative judge weighed this testimony as evidence, not

as further allegations of misconduct. ID at 8. This argument provides no basis to

disturb the initial decision.

¶9 On review, the appellant contends that the initial decision fails to provide

clear and reasoned findings and conclusions. PFR File, Tab 1 at 13-15. Initial

decisions must contain findings of fact and conclusions of law for the material

issues presented in the record, along with the corresponding reasons or bases.

5 C.F.R. § 1201.111(b)(1)-(2); see Spithaler v. Office of Personnel Management,

1 M.S.P.R. 587, 589 (1980). The initial decision issued here meets this standard.

ID at 1-9. The appellant also states that the initial decision is deficient because

the administrative judge did not assess whether the agency proved by

preponderant evidence that he engaged in misconduct. PFR File, Tab 1 at 14.

The burden was not on the agency to do so. As a result of the LCA, in which the

appellant agreed to a waiver of Board appeal rights, the administrative judge first

needed to determine whether the Board had jurisdiction over the appeal. Willis,

105 M.S.P.R. 466, ¶ 17; IAF, Tab 5 at 19-20, 51-52. The burden was on the

appellant to establish jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i)(A). Because the

appellant failed to meet his requisite burden of proving jurisdiction, the

administrative judge properly dismissed the appeal.

¶10 The appellant further argues on review that the administrative judge erred

by finding the hearing testimony of the employee who witnessed the altercation

more credible than his testimony. PFR File, Tab 1 at 15-16. To resolve

credibility issues, an administrative judge 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).

¶11 The employee who witnessed the altercation between the appellant and his

first-line supervisor testified that the appellant used profanity, while the appellant

contends that he did not recollect doing so. 4 HCD (testimony of the appellant),

(testimony of the employee who witnessed the altercation). The administrative

judge analyzed the appropriate Hillen factors in finding the employee’s testimony

more credible. ID at 4-6. The administrative judge considered that the statement

prepared by the employee following the altercation did not reference the use of

profanity, but determined that this employee’s hearing testimony was

substantially consistent with the rest of her previous statement prepared closer to

the date of the argument. ID at 5; IAF, Tab 5 at 35; HCD (testimony of the

employee who witnessed the altercation). The administrative judge also

referenced the contemporaneous email that the appellant’s first -line supervisor

sent on May 13, 2016, in which she too stated that the appellant cursed at her,

further corroborating this employee’s testimony. ID at 5; IAF, Tab 5 at 32.

Moreover, the administrative judge found that this employee had no reason for

bias against the appellant. ID at 5. The accounts of the altercation from the

appellant’s first-line supervisor and the other witness align with this employee’s

testimony as well. IAF, Tab 5 at 30-32, 35, 37; HCD (testimony of customer),

(testimony of the employee who witnessed the altercation).

¶12 In summary, the administrative judge found that, after assessing each

witness’s demeanor and taking into account the first-line supervisor’s

contemporaneous email, the employee’s testimony regarding the use of profanity

was credible. ID at 6. The Board must defer to an administrative judge’s

credibility determinations when they are based, explicitly or implicitly, on

observing the demeanor of a testifying witness. Haebe v. Department of Justice,

In the removal decision, the agency did not allege that the appellant used profanity;

rather, it concluded that he committed misconduct by engaging in a verbal altercation

with his supervisor. IAF, Tab 5 at 20. During the hearing, conflicting testimony was

taken on whether the appellant used profanity during the altercation, but the agency’s

decision that the appellant engaged in misconduct and violated the LCA did not hinge

on the appellant’s use of profanity. IAF, Tab 5 at 9-10, 12-13, 20; HCD (testimony of

the appellant), (testimony of the employee who witnessed the altercation).

288 F.3d 1288, 1301 (Fed. Cir. 2002). The Board may overturn such

determinations only when it has sufficiently sound reasons for doing so. Id.

There is no sufficiently sound reason for doing so in this matter.

¶13 Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which case s fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. 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.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 6 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision. 5

U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the