Opinion

Eleshia Heggins v. Department of Housing and Urban Development

Court: Merit Systems Protection Board
Filed: May 1, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ELESHIA HEGGINS, DOCKET NUMBER

Appellant, DA-0752-18-0540-I-1

DEPARTMENT OF HOUSING AND DATE: May 1, 2024

URBAN DEVELOPMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Don T. O’Bannon , Esquire, Dallas, Texas, for the appellant.

Mary C. Merchant , Esquire, Sakeena M. Adams , Esquire, and Taylor L.

Baronich , Esquire, Fort Worth, Texas, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

sustained her removal. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as expressly MODIFIED to

clarify the administrative judge’s analysis in sustaining the charge of lack of

candor, we AFFIRM the initial decision.

On petition for review, the appellant argues that the agency: (1) failed to

prove its charge of falsification of time and attendance records; (2) failed to

prove the third specification of the charge of lack of candor; and (3) failed to

provide her with requested union representation or notify her of her right to union

representation prior to her interview with agents of the agency’s Office of

Inspector General. Petition for Review File, Tab 1. She does not challenge the

administrative judge’s findings that she failed to prove her remaining affirmative

defenses, that a nexus exists between her conduct and the efficiency of the

service, and that the penalty of removal did not exceed the bounds of

reasonableness. We have reviewed the appellant’s arguments regarding the

agency’s failure to prove its charge of falsification, as well as her argument that

the agency failed to provide her with her requested union representation or notice

of her right to union representation, and affirm the administrative judge’s

findings for the reasons set forth in the initial decision. Initial Appeal File (IAF),

Tab 51, Initial Decision (ID); 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

when she considered the evidence as a whole, drew appropriate inferences, and

made reasoned conclusions on the issue of credibility).

We find the appellant’s argument regarding the third specification of the

lack of candor charge to be without merit; however, we clarify the administrative

judge’s analysis of this charge. An agency alleging lack of candor must prove

(1) that the employee gave incorrect or incomplete information and (2) that she

did so knowingly. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17

(2016). The agency’s sustained specifications provided that the appellant

“knowingly” provided incorrect information to agency officials. IAF, Tab 14

at 28-38. However, the administrative judge found that, for each sustained

specification, the appellant supplied incorrect information to agency officials and,

in doing so, “intended to deceive” the agency. ID at 11-14. Although lack of

candor “necessarily involves an element of deception,” “intent to deceive” is not

a separate element of the offense, as it is for falsification. Ludlum v. Department

of Justice, 278 F.3d 1280, 1284-85 (Fed. Cir. 2002). It was not necessary for the

administrative judge to find the appellant’s conduct intentional to sustain the lack

of candor charge. ID at 11-14; see Prouty v. General Services Administration,

122 M.S.P.R. 117, ¶ 16 (2014) (observing that the Board is required to review the

agency’s decision on an adverse action solely on the grounds invoked by the

agency). Any error that the administrative judge made in her findings was not

prejudicial to the appellant, however, because a finding of intent implicitly

includes a finding that the appellant’s conduct was knowing. See Panter v.

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (providing that an

adjudicatory error that is not prejudicial to a party’s substantive rights provides

no basis for reversal of the initial decision). Accordingly, the administrative

judge properly found that the agency proved its charge of lack of candor. ID

at 11-16. We affirm the initial decision, as modified herein.

NOTICE OF APPEAL RIGHTS 2

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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. 3 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