The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAURA TOMSEN, DOCKET NUMBER
Appellant, NY-0714-18-0016-I-1
v.
DEPARTMENT OF VETERANS DATE: April 12, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Laura Tomsen , Tonawanda, New York, pro se.
Kevin B. Thiemann , Albany, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal from Federal service for patient abuse pursuant to 38 U.S.C.
§ 714. For the reasons discussed below, we GRANT the appellant’s petition for
review, VACATE the initial decision, and REMAND the case to the New York
Field Office for further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant was employed by the agency as a GS-5 Medical Support
Assistant. Initial Appeal File (IAF), Tab 1 at 1. The agency proposed the
appellant’s removal for one charge of patient abuse pursuant to 38 U.S.C. § 714.
IAF, Tab 9 at 45-46. The deciding official found that the charge was supported
by substantial evidence and sustained the appellant’s removal, effective
October 20, 2017. Id. at 20-22. The appellant appealed her removal to the Board.
IAF, Tab 1. She did not request a hearing and did not raise any affirmative
defenses. Id. at 2, 5. In an initial decision based on the written record, the
administrative judge found that the agency proved the charge of patient abuse by
substantial evidence and he stated that, because the agency sustained the charge
by substantial evidence, its chosen penalty of removal must be affirmed. IAF,
Tab 19, Initial Decision (ID) at 5-8. The appellant has filed a petition for review
and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge did not
consider all of the evidence she submitted. PFR File, Tab 1 at 5. The
administrative judge’s failure to mention all of the evidence of record does not
mean that he did not consider it in reaching his decision, and we find no basis to
disturb the initial decision on this basis. Marques v. Department of Health and
Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
1985) (Table). The appellant also argues that, after the record closed before the
administrative judge, she learned that the deciding official was accused of
negligence in his handling of another employee’s sexual harassment allegation,
which she asserts “clouded his judgment” in the appellant’s case. PFR File,
Tab 1 at 3-4. We find that the allegations against the deciding official, which
were brought by a different employee and are unrelated to the charge brought
against the appellant, do not warrant disturbing the findings in the initial
3
decision. Further, on review, the appellant appears to assert for the first time,
without support, that the veteran who made allegations against her, which formed
the basis of the charge in this appeal, suffers from a mental health disorder. Id.
at 5. The appellant has not established that her representations about the
veteran’s mental health are based on new evidence that was unavailable despite
her due diligence. See Banks v. Department of the Air Force, 4 M.S.P.R. 268,
271 (1980) (providing that the Board generally will not consider an argument
raised for the first time in a petition for review absent a showing that it is based
on new and material evidence not previously available despite the party’s due
diligence); 5 C.F.R. § 1201.115(d). Moreover, these new allegations are not
material to the outcome of this appeal. See Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980).
Notwithstanding, remand is required for a different reason. While this
petition for review was pending, the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) held in Rodriguez v. Department of Veterans Affairs, 8 F.4th
1290, 1298-1301 (Fed. Cir. 2021), that, although the Board uses the substantial
evidence standard in reviewing an action under 38 U.S.C. 714, the agency itself
must apply a preponderant evidence standard in determining whether the charges
should be sustained. Here, the deciding official sustained the proposed removal
based on his finding that the charge was “supported by substantial evidence.”
IAF, Tab 9 at 20. Although the agency’s removal decision predated Rodriguez,
the holding in Rodriguez applies to all pending cases, regardless of when the
events at issue took place. Semenov v. Department of Veterans Affairs,
2023 MSPB 16, ¶ 22. The administrative judge and the parties did not have the
benefit of Rodriguez, and they were therefore unable to address its impact on this
appeal. Accordingly, we remand this case for adjudication of whether the
agency’s apparent error in applying the substantial evidence standard of proof
was harmful. Id., ¶¶ 23-24 (finding it appropriate to apply the harmful error
standard from 5 U.S.C. § 7701(c)(2) to actions taken under 38 U.S.C. § 714).
4
Additionally, in Connor v. Department of Veterans Affairs , 8 F.4th 1319,
1325-26 (Fed. Cir. 2021), the Federal Circuit determined that the Board must
consider and apply the factors set forth in Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305-06 (1981), in its review of an agency’s penalty selection
under 38 U.S.C. § 714. The court held that, although section 714 precludes the
Board from mitigating the agency’s chosen penalty, “[i]t does not alter the
penalty review with respect to the Douglas factors” and that, although the Board
cannot mitigate the penalty, “if the Board determines that the [agency] failed to
consider the Douglas factors or that the chosen penalty is unreasonable, the Board
must remand to the [agency] for a redetermination of the penalty.” Connor,
8 F.4th at 1326-27 (citing Brenner v. Department of Veterans Affairs, 990 F.3d
1313, 1325 (Fed. Cir. 2021)) (explaining that, “if the [Board] concludes that the
[agency’s] removal decision is unsupported by substantial evidence, the [Board]
should remand to the [agency] for further proceedings”). As we found with the
Rodriguez case, the Federal Circuit’s decision in Connor applies to all pending
cases, regardless of when the events at issue took place. See Lee v. Department
of Veterans Affairs, 2022 MSPB 11, ¶ 16.
Here, the administrative judge did not review the agency’s penalty, finding
that the penalty “must be affirmed” because the agency sustained its charge by
substantial evidence. ID at 8 (emphasis omitted). Moreover, in the deciding
official’s decision letter upholding the proposed removal, he did not reference
Douglas or cite to the Douglas factors. IAF, Tab 9 at 20-22. Thus, the record is
unclear as to whether the agency properly considered the Douglas factors in
making the decision to remove the appellant. The administrative judge and the
parties did not have the benefit of Connor, and thus were unable to address its
impact on this appeal. Therefore, remand is required for this issue as well.
The administrative judge who decided this case is no longer with the Board
and this case must be assigned to a new administrative judge on remand. The
administrative judge should provide the parties with an opportunity to present
5
evidence and argument addressing whether the deciding official’s use of the
substantial evidence standard constituted harmful error and whether the agency
properly considered the Douglas factors. 2 The administrative judge should hold a
supplemental hearing, if requested by the appellant, to address these two issues.
To the extent it is appropriate, the administrative judge may adopt, in the remand
initial decision, the original findings in the initial decision. However, if any of
the evidence and argument developed on remand causes the administrative judge
to disagree with the previous findings contained in the initial decision, he or she
should explain that in the remand initial decision.
ORDER
For the reasons discussed above, we remand this case to the New York
Field Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
2
In reviewing the penalty, the administrative judge should determine whether the
agency proved by substantial evidence that it properly applied the Douglas factors and
whether the agency’s penalty selection was reasonable. See Connor, 8 F.4th at 1326;
Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1376, 1379 (Fed. Cir. 2020)
(identifying the Board’s scope of review of the penalty in an action taken under
38 U.S.C. § 714 as substantial evidence). If not, he should remand the appellant’s
removal to the agency for a new decision on the appropriate penalty. Id.