NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3065
KAREN D. DANIELS,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Karen D. Daniels, of Madison, Tennessee, pro se.
Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Donald E. Kinner, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3065
KAREN D. DANIELS,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in AT-1221-06-1065-W-1.
____________________________
DECIDED: May 7, 2008
____________________________
Before LOURIE, BRYSON, and GAJARSA, Circuit Judges.
PER CURIAM
DECISION
Karen D. Daniels appeals from the final decision of the Merit Systems Protection
Board (the “Board”) affirming her removal from her position as an Information
Technology Specialist (Customer Support). Daniels v. Dep’t of Veterans Affairs, AT-
1221-06-1065-W-1 (M.S.P.B. Sept. 19, 2007). Because Daniels fails to identify any
reversible error, we affirm.
BACKGROUND
Daniels was a member of the United States Army Reserve in 1996. At that time,
she was granted a security clearance on the condition that she avoid financial
difficulties—similar to those she had encountered in the past involving the accumulation
of unmanageable debt loans. In 1999, however, Daniels accumulated over $2,700 of
debt on her Government-issued credit card, which was subsequently written off as a
bad debt for non-payment. Daniels v. Dep’t of Veterans Affairs, AT-1221-06-1065-W-1,
at 4 (M.S.P.B. Dec. 11, 2006) (“Initial Decision”). In early 2000, Daniels’ supervisor,
Major Bernard Johnson, advised Daniels that she should pay the delinquent balance in
order to avoid indefinite suspension of her security clearance. Daniels failed to pay the
balance and her security clearance was revoked and indefinitely suspended. Id. at 4-5.
On August 27, 2000, Daniels began employment at the Nashville, Tennessee
Veterans Affairs (“VA” or “agency”) Regional Office (“VARO”). She was required to
complete a new employee background investigation, which included completing
Standard Form 85P, Questionnaire for Public Trust Position (“SF-85P”). Notably,
Daniels responded “no” to the following two questions:
18b: To your knowledge, have you ever had a clearance or access
authorization denied, suspended, revoked, or have you ever been
debarred from government employment?
22b: Are you now over 180 days delinquent on any loan or financial
obligation? Include loans or obligations funded or guaranteed by the
Federal Government.
In April 2000, the initial background investigation was completed. The investigation
revealed certain discrepancies with regard to her educational background, as well as
her history of financial difficulties. The VARO Director only addressed the education
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issue with Daniels. No final adjudication was made with regard to either issue and
Daniels continued to work at VARO.
In March 2002, a higher-level background investigation was conducted by the
Office of Personnel Management (“OPM”) on all employees within the Information
Resource Management (“IRM”) section, which included Daniels. Daniels was required
to complete a second SF-85P and again responded in the negative to questions 18b
and 22b. The OPM investigation revealed that Daniels inaccurately responded to
Question 18b in light of the suspension and revocation of her security clearance while
she was in the Army Reserve. Based on the investigation results, the VA Office of
Security and Law Enforcement (“OSLE”) requested a suitability determination from the
Nashville VARO concerning Daniels’ continued employment.
In October 2003, the Nashville VARO Director, Brian Corley, requested a fuller
investigation into the matter by the Office of Inspector General (“OIG”). The OIG
confirmed the OPM’s conclusion regarding Daniels’ answer to Question 18b and further
found that Daniels provided an inaccurate response to Question 22b. Corley thus
recommended to OSLE that Daniels “be found unsuitable for continued employment
with the Department of Veterans Affairs” in light of her false answers, which “have
enormous adverse impact on her trustworthiness.”
In June 2006, the agency issued a Notice of Proposed Removal (“NPR”),
charging Daniels with “failure to provide accurate information on Questionnaire for
Public Trust Positions, SF-85P.” The NPR included four specifications which related to
the inaccurate answers she provided on the SF-85P in 2000 and 2002. Daniels
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responded to the NPR, but was ultimately removed from her position. Daniels appealed
to the Board.
Prior to her appeal to the Board, Daniels had also filed an Office of Special
Counsel (“OSC”) complaint which challenged the agency’s failure to reclassify her
position and the proposed removal, as well as a complaint to the Equal Employment
Opportunity (“EEO”) Commission against certain agency officials, including her current
and former supervisors. Daniels alleged “that she was discriminated against and
harassed due to race and reprisal.” With regard to her reprisal claim, Daniels alleged
that she had engaged in whistleblowing activity that related to the disclosure of security
violations purportedly committed by employees at VARO, including, for example,
unauthorized access and use of data and information systems, password sharing, and
falsification of security reports. The EEO office concluded that Daniels failed to
establish that she was the subject of discrimination and harassment.
The Administrative Judge (“AJ”) sustained Daniels’ removal from the VARO. In
doing so, the AJ determined that the agency met its burden of showing that Daniels
provided incorrect information on her Questionnaire for Public Trust Positions, SF-85P,
with regard to her security clearance and indebtedness. The AJ further found that
Daniels failed to show that her removal was based on reprisal based on the EEO and
OSC complaints she had previously filed. The AJ determined that even if Daniels’
disclosures had constituted protected whistleblowing activities, the agency proved by
clear and convincing evidence that it would have taken the same action in the absence
of such protected activity. Lastly, the AJ found that Daniels failed to prove her
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affirmative defense of prohibited discrimination and that removal was a reasonable
penalty.
Daniels appealed the AJ’s decision to the full Board, which denied her petition
for review, thereby rendering the AJ’s decision final. See 5 C.F.R. § 1201.113.
Daniels timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision of the Board is limited. We
must affirm the Board’s decision unless it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003).
On appeal, Daniels primarily raises three main arguments. First, Daniels asserts
that the AJ made various errors of law and fact in concluding that specifications one to
four, which related to her inaccurate answers on the SF-85P, were sustained. Second,
Daniels argues that the AJ erred in his analysis of whistleblower reprisal. Third, Daniels
challenges the AJ’s conclusion that the penalty of removal was reasonable.
In response, the government argues that substantial evidence supports the AJ’s
conclusion that Daniels failed to provide correct information to Questions 18b and 22b
on the SF-85P. The government further argues that the AJ did not abuse his discretion
in concluding that the agency would have removed Daniels from her position even in the
absence of the alleged retaliation, and thus that Daniels’ defense of whistleblower
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reprisal was properly rejected. The government also asserts that the penalty of removal
was reasonable.
We agree with the government. With regard to Daniels’ first argument, all four
specifications that were sustained were supported by substantial evidence. The record
showed that Daniels was issued a security clearance in 1996, which was ultimately
suspended and revoked after she accumulated over $2,700 in credit card debt.
Nonetheless, Daniels answered “no” to Questions 18b and 22b, which specifically asked
whether she ever had a clearance revoked or suspended and whether she was
delinquent on any loan. In reaching his conclusion, the AJ rested heavily on credibility
determinations of Daniels and various agency witnesses. Daniels’ challenge on appeal
largely amounts to her disagreement with the AJ’s factfindings, which is insufficient to
demonstrate reversible error. Moreover, we are not persuaded by Daniels’ argument
that the specifications should not be sustained because she misinterpreted the
questions. That argument was considered by the AJ and soundly rejected. Initial
Decision at 11-12. Because Daniels fails to show clearly erroneous factfindings or
errors of law, we conclude that the AJ properly sustained specifications one to four.
Second, we are not persuaded by Daniels’ argument that the AJ erred in his
analysis of whistleblower reprisal. Daniels argues that her dismissal was a reprisal
because she disclosed purported security violations occurring at VARO. In order to
prove a claim of reprisal, “the proponent must show that (1) a protected disclosure was
made; (2) the accused official knew of the claimant’s disclosure; (3) the adverse action
under review could, under the circumstances, have been retaliation; and (4) after careful
balancing of the intensity of their motive against the gravity of the misconduct, a nexus
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is established between the adverse action and the motive.” Stanek v. Dep’t of Transp.,
805 F.2d 1572, 1570-80 (Fed. Cir. 1986).
Here, after finding that Daniels’ disclosure of purported security violations
constituted protected activities, the AJ concluded that Daniels failed to show a genuine
nexus between the adverse employment action and any motive to retaliate. The AJ
found that the agency would have removed Daniels even in the absence of the alleged
retaliation. Initial Decision at 6-7. That conclusion is supported by substantial evidence
in the record. Daniels’ position at the VARO was characterized as “critical-sensitive,”
such that it required trustworthiness, security clearance, and an additional background
investigation. Id. at 8. The AJ concluded that Daniels’ failure to disclose accurate facts
on her SF-85P “directly undermined her employment relationship and demonstrated her
untrustworthiness in a very sensitive position,” and thus rejected Daniels’ affirmative
defense of reprisal. We discern no error in this analysis.
Lastly, in reviewing the reasonableness of the penalty, our review is “highly
deferential.” Webster v. Dep’t of Army, 911 F.2d 679, 685 (Fed. Cir. 1990). Moreover,
“[i]t is well-established that selecting the penalty for employee misconduct is left to the
agency’s discretion.” Id. Here, the AJ found that the inaccurate information provided by
Daniels “undermined the agency’s confidence in [Daniels’] trustworthiness which was
critical to her successful performance of her position which required access to sensitive
and confidential computer information regarding both patients and employees.” Initial
Decision at 11. Thus, according to the AJ, removal was “within the bounds of
reasonableness and promotes the efficiency of the service.” We find no error in the
AJ’s ruling.
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We have considered Daniels’ remaining arguments and find them unpersuasive.
Accordingly, because we find the Board’s conclusion to be supported by substantial
evidence and not contrary to law, we affirm.
COSTS
No costs.
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