UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOYCE MOORE, DOCKET NUMBER
Appellant, AT-0752-15-0288-I-1
v.
DEPARTMENT OF VETERANS DATE: April 15, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Elizabeth Morse, Esquire, and Stephanie Bernstein, Esquire, Dallas, Texas,
for the appellant.
Tsopei Robinson, Montgomery, Alabama, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 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 when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 The agency issued the appellant a notice of proposed removal for conduct
unbecoming a Federal employee. Initial Appeal File (IAF), Tab 4, Subtab 4h.
After receiving the appellant’s written response, the deciding official sustained
the charged misconduct and the appellant was removed. Id., Subtab 4j. The
appellant filed an appeal of the agency’s action, and the administrative judge
affirmed her removal. IAF, Tab 19, Initial Decision (ID). The administrative
judge found that the agency had not proved the first of two specifications
supporting the charge, but had proved the second specification that the appellant
possessed money and cigarettes belonging to a resident of the Veterans Affairs
Nursing Home where she worked. ID at 3-7. The administrative judge further
found that the appellant had not been subject to a disparate penalty, her removal
promoted the efficiency of the service, and the penalty of removal was within the
bounds of reasonableness. ID at 8‑10.
¶3 The appellant has filed a petition for review challenging the administrative
judge’s findings. Petition for Review (PFR) File, Tab 1. She argues that the
agency did not prove that she committed the charged misconduct, that the
3
administrative judge failed to make proper credibility determinations, that the
agency failed to establish a nexus between her misconduct and the efficiency of
the service, that she was subjected to a disparate penalty, and that the penalty was
unreasonable. Id. The agency has filed a response to the petition for review.
PFR File, Tab 3.
The administrative judge properly sustained the conduct unbecoming charge.
¶4 A charge of conduct unbecoming contains no specific intent element and
only requires proof that the appellant engaged in the conduct alleged in support of
the broad label. See Raco v. Social Security Administration, 117 M.S.P.R. 1, ¶ 7
(2011). The administrative judge analyzed the evidence and sustained one
specification of the charge. ID at 3-7. The appellant contends that the agency
did not prove that she was responsible for all of the funds missing from the
patient’s account. PFR File, Tab 1 at 9. However, the agency did not charge the
appellant with taking all of the funds. Rather, the sustained specification states
that the appellant admitted to having the patient’s money and cigarettes in her
office. IAF, Tab 4, Subtab 4j. The record reflects that the appellant does not
dispute that she kept the patient’s money and cigarettes in her office. IAF, Tab 4,
Subtab 4i at 4, Subtab 4e at 22‑23. The agency has proven that it was against
policy for the appellant to possess a patient’s money. IAF, Tab 4, Subtab 4p at 4.
We discern no reason to reweigh the evidence or substitute our assessment of the
record evidence for that of the administrative judge. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105‑06 (1997) (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).
¶5 The appellant asserts that the administrative judge failed to make proper
credibility determinations. PFR File, Tab 1 at 15-17. Where, as here, no hearing
was held and the administrative judge’s findings were based only on the written
record, the Board will give those findings only the weight warranted by the record
and the strength of her conclusions. White v. Department of Housing & Urban
4
Development, 95 M.S.P.R. 299, ¶ 27 (2003); Donato v. Department of Defense,
34 M.S.P.R. 385, 389 (1987). However, the Board will not reconsider an
administrative judge’s factual findings simply based on an allegation that he
failed to give sufficient weight to one party’s evidence or gave too much weight
to the other party’s evidence. Donato, 34 M.S.P.R. at 389‑90. Here, the
administrative judge relied primarily on the appellant’s own statements in finding
that she had in fact committed the misconduct charged. ID at 4-6. The
administrative judge did not credit the appellant’s contention that her supervisor
knew about and condoned her misconduct because the appellant failed to support
this contention with evidence such as an affidavit from the supervisor. ID at 5‑6.
¶6 The appellant argues that the administrative judge was influenced by
allegations described in the evidence but not relied on by the agency to support
the charge and penalty. PFR File, Tab 1 at 18-19. The record does contain
evidence of alleged misconduct that was not relied on to support the sustained
specification. E.g., IAF, Tab 4, Subtabs 4l-4o. However, there is no indication
that the administrative judge was prejudiced by this information. The appellant’s
bare allegation alone is an insufficient basis for disturbing the initial decision.
The initial decision shows that the administrative judge considered the relevant
evidence and came to reasonable conclusions. The appellant’s contentions merely
reargue the evidence presented to the administrative judge and disagree with his
findings. We discern no basis for reweighing the evidence or disturbing the
administrative judge’s findings. See Crosby, 74 M.S.P.R. at 105‑06.
The agency has proven nexus between the appellant’s misconduct and the
efficiency of the service.
¶7 The appellant argues that there is no nexus between her misconduct and the
efficiency of the service. PFR File, Tab 1 at 9. To prove nexus, the agency must
show a clear and direct relationship between the articulated grounds for the
adverse action and either the appellant’s ability to accomplish her duties
satisfactorily or some other legitimate Government interest. Ellis v. Department
5
of Defense, 114 M.S.P.R. 407, ¶ 8 (2010). An agency may establish nexus by
showing that the employee’s conduct (1) affected her or her coworkers’ job
performance, (2) affected management trust and confidence in the employee’s job
performance, or (3) interfered with or adversely affected the agency’s mission.
Canada v. Department of Homeland Security, 113 M.S.P.R. 509, ¶ 11 (2010).
The appellant’s supervisor stated that he no longer trusts that the appellant can
perform her duties satisfactorily. IAF, Tab 4, Subtab 4s at 3. The appellant’s
misconduct is directly related to her duties as a patient escort. We agree with the
administrative judge’s finding that a nexus exists between the appellant’s
misconduct and the efficiency of the service. ID at 7.
The penalty of removal is reasonable.
¶8 The appellant argues that the penalty of removal was too harsh for her
misconduct. PFR File, Tab 1 at 18. Where, as here, all of the agency’s charges
are sustained, but some of the underlying specifications are not sustained, the
agency’s penalty determination is entitled to deference and should be reviewed
only to determine whether it is within the bounds or reasonableness. Stack v. U.S.
Postal Service, 101 M.S.P.R. 487, ¶ 9 (2006). In determining whether the
selected penalty is reasonable, the Board gives due deference to the agency’s
discretion in exercising its managerial function of maintaining employee
discipline and efficiency. Woebcke v. Department of Homeland Security,
114 M.S.P.R. 100, ¶ 7 (2010). The Board recognizes that its function is not to
displace management’s responsibility or to decide what penalty it would impose
but to assure that management judgment has been properly exercised and that the
penalty selected by the agency does not exceed the maximum limits of
reasonableness. Id. The most important factor in assessing whether the agency’s
chosen penalty falls 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,
6
¶ 14 (2010). Here, the appellant’s misconduct is directly related to the mission
and her duties as a patient escort.
¶9 The appellant notes that, in response to her discovery requests, the agency
provided examples of other employees removed for conduct unbecoming a
Federal employee that involved patients’ funds, but each of the cited examples is
more egregious misconduct than her own. PFR File, Tab 1 at 12-14, 18. The
appellant asserts that, because the misconduct committed by these employees was
more egregious, she should have been subjected to a less severe penalty. Id.
at 13-15. To trigger the agency’s evidentiary burden on disparate penalties, the
appellant must show that there is enough similarity between both the nature of the
misconduct and other factors to lead a reasonable person to conclude that the
agency treated similarly situated employees differently. Boucher v. U.S. Postal
Service, 118 M.S.P.R. 640, ¶¶ 20‑24 (2012). Because the appellant has not
identified employees whose misconduct was the same or similar to her own, she
has not met this initial showing. 2 Ellis v. U.S. Postal Service, 121 M.S.P.R. 570,
¶ 11 (2014).
¶10 The appellant contends that the agency’s table of penalties does not
mandate removal for her misconduct. PFR File, Tab 1 at 10. The deciding
official acknowledged that the specific charge of conduct unbecoming a Federal
employee is not included in the table of penalties, and therefore he relied on the
charge of abuse of patients or beneficiaries for guidance in determining the
appropriate penalty range for the appellant’s misconduct. IAF, Tab 4, Subtab 4s
at 2. The penalty range in the table of penalties for a first offense of this type of
misconduct is from reprimand to removal. IAF, Tab 13 at 4. The appellant is
2
If the agency failed to produce evidence of similarly situated employees in response to
the appellant’s discovery requests for that information, she could have filed a motion to
compel. The appellant’s failure to file a motion to compel below precludes her from
raising a discovery dispute for first time on review. See, e.g., Szejner v. Office of
Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed.
Cir. 2006).
7
correct. The table of penalties does not mandate removal. However, an agency
can craft an appropriate reasonable penalty to fit misconduct that is not addressed
by a specific provision of its table of penalties. See Dolezal v. Department of the
Army, 58 M.S.P.R. 64, 69 (1993), aff’d, 22 F.3d 1104 (Fed. Cir. 1994) (Table).
We find that, because the appellant’s misconduct is not specifically contained in
the table of penalties, the deciding official appropriately relied on a different
charge to provide guidance as to the range of appropriate penalties. See
Phillips v. Department of the Interior, 95 M.S.P.R. 21, ¶ 17 (2003) (finding that,
when the table of penalties does not require specific penalties, it was within the
deciding official’s discretion to apply the misconduct listed in the table of
penalties that most nearly resembled the circumstances in the appellant’s case),
aff’d, 131 F. App’x 709 (Fed. Cir. 2005). Additionally, when the range of
penalties is from reprimand to removal, the table of penalties provides very little
actual guidance on the appropriateness of a removal penalty. See Culley v.
Defense Logistics Agency, 60 M.S.P.R. 204, 215 (1993). Because of the range of
penalties in the table of penalties for the offense relied on by the deciding official
for guidance was reprimand to removal, the table of penalties provides very little
guidance as to the appropriateness of the chosen penalty.
¶11 The appellant had a 24-year career with the agency without any prior
discipline. However, we find that the deciding official gave adequate
consideration to the Douglas factors and the penalty of removal does not exceed
the bounds of reasonableness. Douglas v. Veterans Administration, 5 M.S.P.R.
280, 305-06 (1981) 3; IAF, Tab 4, Subtab 4s. We find no support in the record for
the appellant’s allegation that the administrative judge “allowed his emotions and
outside facts to impact his opinion.” PFR File, Tab 1 at 20. Contrary to the
appellant’s assertions, the Board cannot independently investigate the agency’s
findings in its penalty determination. Id. at 9. The appellant also repeatedly
3
In Douglas, the Board identified factors relevant for consideration in determining the
appropriateness of a penalty.
8
accuses the administrative judge of failing to consider relevant mitigating
Douglas factors. E.g., PFR File, Tab 1 at 10, 15-16. The fact that the
administrative judge did not mention all of the evidence of record, though,
does not mean that he did not consider it in reaching his decision. See Marques v.
Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985). If the deciding official weighed the relevant
factors and his judgment did not clearly exceed the limits of reasonableness, the
Board must defer to the agency’s judgment with regard to choosing the
appropriate penalty. Taylor v. Department of Veterans Affairs, 98 M.S.P.R. 337,
¶¶ 7-8 (2005), aff’d, 175 F. App’x 335 (Fed. Cir. 2006). Here, the agency has
presented evidence that it considered the relevant Douglas factors, including the
mitigating Douglas factors identified by the appellant. IAF, Tab 4, Subtab 4s.
Thus, we agree with the administrative judge’s finding that the agency established
the reasonableness of the penalty. ID at 11.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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 U.S. 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 U.S. 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 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
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.