UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARRELL WATSON, DOCKET NUMBER
Appellant, CH-0752-14-0163-I-1
v.
DEPARTMENT OF VETERANS DATE: May 13, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
David Duwel, Esquire, Dayton, Ohio, for the appellant.
Demetrious A. Harris, Esquire, Dayton, Ohio, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
mitigated the appellant’s removal to a 30-day suspension and demotion to a
nonsupervisory position. Generally, we grant petitions such as this one only
when: the initial decision contains erroneous findings of material fact; the initial
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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 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. See 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, and based on the following points and authorities, 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant held the supervisory position of Program Specialist for the
agency’s medical center in Dayton, Ohio. Initial Appeal File (IAF), Tab 3,
Subtab 4a (Standard Form 50), Subtab 4pp (position description). In May 2013,
the agency received a sexual harassment complaint from a “patient/volunteer,”
Ms. M. IAF, Tab 3, Subtab 4l. The agency convened an Administrative
Investigation Board (AIB). IAF, Tab 3, Subtab 4h. Although the AIB found
unsubstantiated Ms. M’s harassment allegations, it concluded that the appellant
did engage in a consensual sexual relationship with her and that, though unrelated
to his relationship with Ms. M, he sent inappropriate emails from his government
computer. Id. at 80-82 (AIB final conclusions).
¶3 In September 2013, the agency proposed the appellant’s removal. IAF,
Tab 3, Subtab 4e. The agency charged him with: (A) establishing an
inappropriate relationship with a veteran patient; (B) failure to maintain
professional boundaries with a veteran patient; and (C) inappropriate use of a
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government computer. Id. at 2-19. The appellant responded to the charges,
admitting the inappropriate relationship and inappropriate use of his computer,
but requesting discipline short of removal. IAF, Tab 3, Subtab 4d. Nevertheless,
the agency issued its decision, removing the appellant from service. IAF, Tab 3,
Subtab 4b.
¶4 The appellant filed a Board appeal, alleging that removal was an
unreasonably severe penalty. IAF, Tab 1 at 6; see IAF, Tab 17 at 2 (prehearing
conference summary identifying the disputed issues). The administrative judge
found that the agency met its burden of proving the charges 2 and nexus. IAF,
Tab 18, Initial Decision (ID) at 3-6. However, he mitigated the appellant’s
removal to a 30-day suspension and demotion to a nonsupervisory position. ID at
6-9. The agency has filed a petition for review, arguing that the administrative
judge erred by mitigating the penalty. Petition for Review (PFR) File, Tab 1.
The appellant has filed a response. PFR File, Tab 3.
¶5 Where the agency’s charges have been sustained, the Board will review an
agency-imposed penalty only to determine if the agency considered all of the
relevant factors and exercised management discretion within tolerable limits of
reasonableness. Woebcke v. Department of Homeland Security, 114 M.S.P.R.
100, ¶ 7 (2010). The most important factor in assessing whether the agency’s
chosen penalty is within the tolerable bounds of reasonableness is the nature and
seriousness of the misconduct and its relation to the employee’s duties, position,
and responsibilities. Edwards v U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14
(2010).
2
The administrative judge merged charges A and B because he found that they were
duplicative. IAF, Tab 17 at 2; see generally Powell v. U.S. Postal Service,
122 M.S.P.R. 60, ¶¶ 10, 11 n.3 (2014) (the Board will merge charges if they are based
on the same conduct and proof of one automatically constitutes proof of the other; the
fact that a charge has been merged into another does not mean that the appellant’s
conduct somehow becomes less serious).
4
¶6 Here, the administrative judge determined, and we agree, that the agency’s
decision to remove the appellant exceeded the tolerable limits of reasonableness
under the circumstances. ID at 8. Significantly, the administrative judge found,
contrary to the assertions made by the deciding official, that the appellant’s
misconduct was not particularly egregious in relation to his duties. ID at 6-8;
IAF, Tab 3, Subtab 4c at 1-2. For instance, although the deciding official
testified that the appellant’s misconduct concerning charge A/B constituted
patient abuse because Ms. M was a patient of the hospital at the time, the
administrative judge correctly noted, based upon the results of the AIB
investigation, that his relationship with Ms. M appeared to have been “more
related to her volunteer status than her status as a female Veteran patient.” ID at
7 (quoting IAF, Tab 3, Subtab 4h at 81). Moreover, the AIB did not find that the
appellant abused his relationship with Ms. M or used his position to manipulate
her, and it found that the relationship was consensual and entered into voluntarily
by both parties, without a quid pro quo arrangement of employment for Ms. M or
sexual favors for the appellant. Id. Similarly, concerning charge C, the
administrative judge noted that the appellant merely forwarded inappropriate
emails; he did not create them. ID at 6. He also found no evidence that the
appellant’s forwarding of the emails disrupted the workplace or substantially
interfered with the performance of his duties or the agency’s ability to accomplish
its mission, noting that he forwarded, on average, only one inappropriate email
per month from March 2009 through January 2011. Id.
¶7 Because he determined that the removal penalty was too severe, the
administrative judge independently weighed the relevant mitigating factors,
finding that a 30-day suspension and demotion to a nonsupervisory position was
the maximum reasonable penalty under the circumstance. ID at 8-9. Specifically,
the administrative judge found that the appellant had been employed by the
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agency for 18 years, 3 had a clean work record, and had received outstanding
performance evaluations over the previous 4 years. ID at 8. He also found that
the appellant had a high potential for rehabilitation based in part on his demeanor
at the hearing. Id.
¶8 On review, the agency disputes the administrative judge’s finding that the
appellant had a high potential for rehabilitation. PFR File, Tab 1 at 7-9. In the
initial decision, the administrative judge found, given the turmoil in the
appellant’s 33-year marriage that resulted from his relationship with Ms. M, that
he was highly unlikely to repeat such misconduct in the future. ID at 8. He also
found a high rehabilitation potential because the appellant fully admitted his
misconduct and his demeanor at the hearing evinced genuine remorse for his
actions. ID at 8. The agency argues that the appellant’s admission of the
inappropriate relationship with Ms. M does not demonstrate a potential for
rehabilitation, considering he had little alternative under the circumstances. PFR
File, Tab 1 at 8. It also argues that the administrative judge impermissibly
“expanded the scope of ‘potential for rehabilitation’” by considering the turmoil
in the appellant’s marriage. Id. at 9. We disagree. Given that the administrative
judge, as the trier of fact, based his findings in part upon the appellant’s
demeanor at the hearing and because we find that it was within the administrative
judge’s discretion to consider all testimony he deemed relevant, we find the
agency’s arguments are insufficient to overturn the administrative judge’s
3
The administrative judge considered the appellant’s 18-year tenure with the agency as
a mitigating factor while it appears that the deciding official considered it as an
aggravatin g factor, stating that his “length of service with the agency and extended
period of time serving in a supervisory capacity speak to the level of knowledge and
judgment he should have been exercising regarding his inappropriate actions.” ID at 8;
IAF, Tab 3, Subtab 4c at 2-3. The Board has specifically rejected the deciding
official’s approach, noting that such a scheme yields the illogical resu lt that the longer
an individual works for an agency, the more likely that a single misstep would be fatal
to his career. Shelly v. Department of the Treasury, 75 M.S.P.R. 677, 684 (1997). We
find the administrative judge’s consideration of this factor as appropriate and consistent
with the law.
6
findings that the appellant evinced genuine remorse and had a high potential for
rehabilitation. ID at 8; see Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002) (the Board may overturn credibility determinations based on the
observation of the demeanor of witnesses testifying at a hearing only when it has
“sufficiently sound” reasons for doing so). Accordingly, we conclude that the
agency has set forth no basis to disturb the administrative judge’s findings in this
regard.
¶9 The agency also argues on review that the administrative judge erred in
relying on Reynolds v. Veterans Affairs, 75 M.S.P.R. 509 (1997), in determining
the maximum reasonable penalty. PFR File, Tab 1 at 9-10. We disagree. In
Reynolds, the Board mitigated a removal to a 30-day suspension where the
appellant developed a romantic relationship with a veteran patient she eventually
married. 75 M.S.P.R. at 517. The Board considered, among other things, that the
appellant had almost 18 years of satisfactory service with had no prior offenses,
like the appellant here. Id. The appellant in Reynolds was a nonsupervisory
employee, as the agency noted. However, the administrative judge’s actions in
this case were actually consistent with Reynolds given that he demoted the
appellant from a supervisory to a nonsupervisory position in addition to imposing
a 30-day suspension. ID at 9. We therefore find no error in this regard and
affirm the administrative judge’s finding that a 30-day suspension and demotion
to a nonsupervisory position is the maximum reasonable penalty under the
circumstances.
ORDER
¶10 We ORDER the agency to cancel the appellant’s removal and substitute in
its place a 30-day suspension and demotion to a nonsupervisory position effective
November 15, 2013. This action must be accomplished no later than 20 calendar
days after the date of this decision.
7
¶11 We ORDER the agency to place the appellant in a position in the next
lower-graded nonsupervisory position, with the least reduction in pay, in which
the appellant can be expected to perform in a fully satisfactory manner. This
action should be made retroactive to the date of the removal, and must be
accomplished no later than 20 calendar days after the date of this decision.
¶12 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency's
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board's Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶13 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board's Order and of the actions it
took to carry out the Board's Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶14 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board's Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board's Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board's Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶15 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
8
are attached. We ORDER the agency to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, 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 Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED B Y IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if app licable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work durin g the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.