Opinion

Carol Puccerelli v. Department of Treasury

Court: Merit Systems Protection Board
Filed: Feb 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.3%

stating that deference is due not only when an administrative judge’s credibility determinations explicitly rely on demeanor, but also when they do so “by necessary implication”

How later courts described this case

stating that deference is due not only when an administrative judge’s credibility determinations explicitly rely on demeanor, but also when they do so “by necessary implication”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CAROL A. PUCCERELLI, DOCKET NUMBER

Appellant, NY-0752-17-0087-I-1

DEPARTMENT OF THE TREASURY, DATE: February 22, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carol A. Puccerelli , Rocky Point, New York, pro se.

Jael Dumornay , New York, New York, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision that

sustained her removal from the agency for claiming Government benefits to

which she was not entitled and attempting to access her own tax account in

violation of agency policy. Generally, we 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

The appellant began working for the agency in 2010 as a Contact

Representative. Initial Appeal File (IAF), Tab 6 at 36. 2 In this position, the

appellant was responsible for communicating with taxpayers to assist them in

achieving tax compliance. IAF, Tab 1 at 8, Tab 28 at 35; Hearing Compact Disc

(HCD) (testimony of the appellant). This included accessing personal and

financial information for taxpayers to establish installation payments, ordering

tax transcripts, and adjusting taxpayer accounts. IAF, Tab 1 at 8, Tab 28 at 35;

HCD (testimony of the appellant).

Effective January 30, 2017, the agency removed the appellant on the charge

of claiming Government benefits to which she was not entitled and the charge of

attempting to access her own tax account. IAF, Tab 1 at 7, 12-13. The first

charge includes four specifications describing instances whereby the appellant

certified to the New York State Department of Labor (NYS DOL) that she was

not working or receiving income, when she was in fact working for the agency on

the reported dates in a pay status. Id. at 12-13. As a result, the appellant was

ineligible for unemployment benefits but received them anyway based on the

On her Standard Form 50, the appellant’s position is listed as a Contact

Representative; however, the agency commonly refers to this position as Customer

Service Representative. IAF, Tab 6 at 36, Tab 45 at 5 n.4.

false information that she provided. Id. The latter charge contains one

specification alleging that the appellant knowingly violated agency policy by

attempting to access her own tax account on the agency’s system. Id. at 13.

The appellant appealed her removal to the Board. IAF, Tab 1. After

holding a hearing, the administrative judge issued an initial decision affirming the

removal action, finding that the agency met its burden of proving the charges, a

nexus between the charges and the efficiency of the service, and the

reasonableness of the penalty. IAF, Tab 47, Initial Decision (ID) at 1-14. The

appellant’s petition for review and the agency’s response followed. Petition for

Review (PFR) File, Tabs 3, 8.

We have thoroughly reviewed the record in this case and agree with the

administrative judge’s well-reasoned and supported findings. There is no basis to

disturb them. See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016)

(finding no reason to disturb the administrative judge’s findings in the initial

decision when she considered the evidence, drew appropriate inferences, and

made reasoned conclusions); Broughton v. Department of Health and Human

Services, 33 M.S.P.R. 357, 359 (1987) (same). 3

On review, the appellant claims that she was unfairly prejudiced due to the

duration between the charged misconduct occurring and her removal. PFR File,

Tab 3 at 5-6. The appellant argues that this amount of time prohibited her from

recovering call records that would have aided in her defense against the charge of

claiming Government benefits to which she was not entitled. Id. at 6.

Although sometimes a charge may be dismissed if an agency’s delay in

proposing the adverse action is unreasonable and prejudicial to an appellant, such

The Board’s decision in Singh v. U.S. Postal Service, 2022 MSPB 15, ¶¶ 9-18, issued

after the initial decision in this appeal, clarifies that the relevant inquiry for assessing a

claim of disparate penalty when weighing the reasonableness of a penalty is whether the

agency knowingly and unjustifiably treated employees who engaged in the same or

similar offenses differently. There is no evidence in the record to indicate that the

agency did so in this case. Thus, any subsequent change in the case law does not

provide a reason to disturb the conclusions of the initial decision.

circumstances do not exist in this appeal. See Messersmith v. General Services

Administration, 9 M.S.P.R. 150, 155-56 (1981) (holding that the delay between

the misconduct and the agency’s issuing the proposal was not a reason to overturn

the action, as the delay was caused by the seriousness of the charges, the

corresponding investigation, the U.S. Attorney’s involvement, and appeal, the

appellant did not identify any prejudicial harm from the delay). In this case, the

NYS DOL and the Treasury Inspector General for Tax Administration (TIGTA)

conducted a joint initiative beginning in 2014 to identify employees receiving

unemployment benefits under fraudulent claims. IAF, Tab 27 at 21-22. The

appellant knew that she was a subject of this investigation well before the

proposal to remove was issued, as the NYS DOL sent her notice in April 2015

that it was looking into her previous unemployment claims, and she then was

interviewed by TIGTA about the matter in April 2016. IAF, Tab 28 at 4, 37-38.

The appellant did not submit these now-mentioned call records to the NYS DOL

or TIGTA at these earlier times, nor is there anything in the record to indicate

that she even attempted to obtain these records. TIGTA discovered that the

appellant engaged in additional misconduct in November 2015 by attempting to

access her own tax account, which resulted in more investigation, delaying the

issuance of the proposal. IAF, Tab 27 at 21-22. Further delay was caused by the

agency’s referring the appellant’s misconduct to the U.S. Department of Justice,

which declined criminal prosecution. IAF, Tab 28 at 32. The appellant’s

argument does not diminish the strength of the agency’s evidence proving that

she engaged in the serious charged misconduct. Thus, the appellant’s arguments

do not provide a basis to disturb the initial decision.

The appellant takes issue on review with some of the credibility

determinations made by the administrative judge. Specifically, the appellant

claims that her hearing testimony—regarding not receiving the NYS DOL

unemployment insurance handbook and her attempts to call the NYS DOL to

self-report the ineligible payment of benefits—was more credible than the hearing

testimony of the NYS DOL Investigative Officer, who testified that the appellant

did receive the handbook and the NYS DOL had no record of a telephone call

from the appellant to report an ineligible payment. PFR File, Tab 3 at 6-7; HCD

(testimony of NYS DOL Investigative Officer; testimony of the appellant). 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).

In the initial decision, the administrative judge properly assessed the Hillen

factors in finding the appellant’s testimony not credible. ID at 6-9. In weighing

the appellant’s testimony, the administrative judge noted the appellant’s overall

demeanor, how the documentary evidence refuted many of the appellant’s

statements, and the lack of sufficient explanations in the appellant’s responses.

ID at 7-8. 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, 288 F.3d

1288, 1301 (Fed. Cir. 2002); see Purifoy v. Department of Veterans Affairs ,

838 F.3d 1367, 1373 (Fed. Cir. 2016) (stating that deference is due not only when

an administrative judge’s credibility determinations explicitly rely on demeanor,

but also when they do so “by necessary implication”). The Board may overturn

such determinations only when it has sufficiently sound reasons. Haebe,

288 F.3d at 1301. No such reason is present in this case.

In an effort to buttress her claims, the appellant attempts to submit new

evidence into the record on review that was not entered below. PFR File, Tab 3

at 6, 15-39. This evidence includes a bank receipt, a disciplinary action report

from the bargaining unit, a proposal and decision notice for another employee,

and a letter regarding potential settlement in an arbitration involving another

employee. Id. at 12-39. The Board generally will not consider evidence

submitted for the first time on review absent a showing that: (1) the documents

and the information contained in the documents were unavailable before the

record closed despite due diligence; and (2) the evidence is of sufficient weight to

warrant an outcome different from that of the initial decision. Cleaton v.

Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d 1126 (Fed.

Cir. 2016).

In this instance, the bank receipt is from April 2013, years before the

record closed in this case, and the appellant admits that she came across it after

the hearing when organizing her personal papers. PFR File, Tab 3 at 6, 39.

Regarding the disciplinary action report, the appellant received notice in

May 2017, months before the record closed, that this report was available in an

accessible, searchable database. Id. at 14. The appellant made vague reference to

this report in her hearing testimony, but did not seek to admit it into evidence at

that time. HCD (testimony of the appellant). Similarly, the proposal and

decision notice, along with the letter regarding potential settlement of an

unrelated arbitration, are from earlier in 2016 and 2017, months before the record

closed here. PFR File, Tab 3 at 29, 34, 38. As a result, the appellant has not

made a showing that these documents were unavailable before the record closed

despite her due diligence. Further, she fails to explain how including these

documents in the record would demand a different result than that reached in the

initial decision. See Dyer v. Office of Personnel Management, 41 M.S.P.R. 244,

247 (1989) (holding that the Board would not consider evidence submitted by the

appellant for the first time on review because he did not establish that it was

previously unavailable despite his due diligence and that the evidence was

sufficient to warrant a different outcome).

On review, as she did during the hearing, the appellant requests that any

evidence and testimony related to her NYS DOL unemployment file be struck

from the record, as she claims that such evidence was obtained impermissibly and

contains information of a personal nature. PFR File, Tab 3 at 7-8; HCD

(testimony of the appellant). However, the agency obtained such relevant

documentary evidence from the NYS DOL through a subpoena, while the

administrative judge issued a subpoena for the relevant hearing testimony of the

NYS DOL Investigative Officer. IAF, Tab 22 at 1-2; Tab 27 at 27-28; HCD

(testimony of TIGTA Special Agent). The NYS DOL provided a business records

certification when supplying the agency with the appellant’s file. IAF, Tab 27

at 29, Tab 41 at 8. The appellant has failed to raise a legitimate basis to support

granting her request. See Sabio v. Department of Veterans Affairs, 124 M.S.P.R.

161, ¶ 15 (2017) (denying the appellant’s motion to strike because she provided

no basis to grant it).

Lastly, many of the appellant’s other contentions on review, including

claims of disparate penalty and the agency’s failure to meet its burden of proving

the charges, a nexus between the charged misconduct and the efficiency of the

service, and the reasonableness of the removal penalty, merely reargue the issues

and findings of fact made by the administrative judge. PFR File, Tab 3 at 8-11.

Such contentions are inadequate to warrant granting her petition for review. See

Hsieh v. Defense Nuclear Agency, 51 M.S.P.R. 521, 524-25 (1991) (holding that

merely rearguing the same issues heard and decided by the administrative judge,

with nothing more, does not constitute a basis to grant a petition for review),

aff’d, 979 F.2d 217 (Fed. Cir. 1992) (Table).

NOTICE OF APPEAL RIGHTS 4

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 cases 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).

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:

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.

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. 5 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