UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN A. SEIGARS, DOCKET NUMBER
Appellant, DA-0752-15-0091-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: September 14, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Anthony W. Walluk, Esquire, San Antonio, Texas, for the appellant.
Kyle Little, Esquire, Randolph Air Force Base, Texas, 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 his 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
erroneous application of the law to the facts of the case; the administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, 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).
¶2 The appellant, a GS-12 Air Traffic Control Specialist (Terminal) with the
80th Flying Training Wing at Sheppard Air Force Base in Texas, was removed for
“Deliberate Misrepresentation.” The agency charged that, between approximately
January 1 and May 1, 2014, he inflated the hours he worked by submitting
Automated Time Attendance and Production System (ATAAPS) entries or other
time cards showing that he worked approximately 91.75 hours more than he
actually did. The agency referenced 22 incidents representing approximately
$5000 in pay. Initial Appeal File (IAF), Tab 4, Subtabs 4a-4b, 4h. In effecting
the action, the agency considered the appellant’s past disciplinary record, an
August 26, 2014 letter of reprimand he received for sleeping on duty. Id.,
Subtab 4h.
¶3 On appeal, the appellant argued that the penalty of removal was too harsh.
IAF, Tab 1 at 3. He requested a hearing. Id. at 2. During adjudication, the
appellant acknowledged the errors that occurred in his time and attendance
records, but he claimed that they were unintentional and were caused by the
agency’s lack of supervisory oversight and its failure to properly train employees
on the ATAAPS. IAF, Tab 15.
¶4 In her initial decision, the administrative judge found that the agency
proved the elements of misrepresentation by preponderant evidence. IAF,
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Tab 25, Initial Decision (ID) at 6. Specifically, she found that the agency proved
that the appellant supplied incorrect information and that he did so knowingly
with the intention of defrauding, deceiving, or misleading the agency. ID at 6-9.
The administrative judge further found that the agency’s action promotes the
efficiency of the service, ID at 9, and that removal is a reasonable penalty for the
sustained charge, ID at 9-14, and she affirmed the agency’s action, ID at 1, 14.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3.
¶6 The appellant does not deny that he provided incorrect information, but he
contends that the administrative judge erred in finding that he did so with the
intention of defrauding, deceiving, or misleading the agency. The intent to
defraud or mislead the agency may be established by circumstantial evidence or
inferred when the misrepresentation is made with a reckless disregard for the
truth or with conscious purpose to avoid learning the truth. See Whelan v. U.S.
Postal Service, 103 M.S.P.R. 474, ¶ 6 (2006), aff’d, 231 F. App’x 965 (Fed. Cir.
2007). Whether intent has been proven must be resolved by considering the
totality of the circumstances, including the appellant’s plausible explanation, if
any. Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 10 (2014).
¶7 In finding that the agency established intent, the administrative judge first
found that the appellant’s testimony that he did not know how to enter leave in
the ATAAPS until after he was confronted with the attendance discrepancies was
at odds with his having correctly inputted a number of hours of annual and sick
leave during the period at issue. ID at 7. She also considered the appellant’s
testimony that he could not open the PowerPoint slides that the agency provided
to employees to explain the ATAAPS but found it contrary to the credible
testimony of the 80th Flying Training Wing Resource Advisor that the appellant
had called her office several times for assistance in using the System and that she
provided such assistance to him. In addition, the administrative judge considered
the appellant’s claim that he might have supplied wrong information because he
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did not know how to make changes to time cards that already had been submitted
until after the period at issue but found it inconsistent with the testimony of one
of his coworkers that, when he had to change a time card after it had been
submitted, he asked for and received assistance either from his certifier or from
the Wing Resource Advisor. ID at 7-8. The administrative judge also found the
appellant’s claim that his ATAAPS entries were simply innocent errors
inconsistent with what she found was a pattern of his claiming more time than he
actually worked and less leave than he actually took, information that he could
access that should have revealed the discrepancies to him and which demonstrated
on his part a reckless disregard for the truth. The administrative judge further
found that the appellant personally benefited from his deception. ID at 8.
¶8 In disputing the administrative judge’s finding that the agency proved that
he provided the wrong information with the intention of defrauding, deceiving, or
misleading the agency, PFR File, Tab 1 at 3-6, the appellant challenges the
administrative judge’s finding that the Wing Resource Advisor was credible in
her hearing testimony, whereas the appellant himself was not, id. at 3-4. To
resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state
which version she believes, and explain in detail why she found the chosen
version more credible, considering a number of factors, as appropriate, set forth
by the Board in its seminal case of Hillen v. Department of the Army, 35 M.S.P.R.
453, 458 (1987) (factors comprising the witness’s opportunity and capacity to
observe the event or act in question, the witness’s character, prior inconsistent
statement by the witness, a witness’s bias, or lack of bias, the contradiction of the
witness’s version of events by other evidence or its consistency with other
evidence, the inherent improbability of the witness’s version of events, and the
witness’s demeanor). The Board must give due deference to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly,
on the observation of the demeanor of witnesses testifying at a hearing; the Board
5
may overturn such determinations only when it has “sufficiently sound” reasons
for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002). Here, the administrative judge found that the Wing Resource Advisor
testified in a very clear, direct, and straightforward manner and that she was an
extremely credible and knowledgeable witness, ID at 7, but that the appellant’s
testimony was not clear, direct, or straightforward and was inconsistent with
specific evidence of record, which she detailed, ID at 6. Because the appellant
has failed to provide sufficiently sound reasons for overturning the administrative
judge’s credibility determinations that were based on her observations of the
witnesses’ demeanor, we find it appropriate to defer to them. Haebe, 288 F.3d
at 1302.
¶9 The appellant also argues that the administrative judge did not consider his
claim that the only training the agency provided on ATAAPS, PowerPoint slides,
did not provide adequate assistance for him in submitting his time and attendance
records as evidenced by the fact that other employees had to ask for help. PFR
File, Tab 1 at 5. On the contrary, the administrative judge did address this claim,
but she found, considering the testimony of one of the appellant’s witnesses, that
assistance was available and that the appellant took advantage of such assistance.
ID at 7.
¶10 The appellant also argues on review that, in finding that the appellant’s
actions were intentional, the administrative judge failed to give proper
consideration to the fact that he had numerous illnesses and hospitalizations
during the period at issue, causing him to use more leave than he had in the past,
and that he had no motive to falsify his entries because he had sufficient leave
balances when the first of his errors occurred and had recently won a significant
amount of money in the lottery. PFR File, Tab 1 at 4, 8. These claims are
properly considered under the totality of the circumstances in connection with the
plausibility of the appellant’s explanation. Boo, 122 M.S.P.R. 100, ¶ 10. As
noted, the administrative judge did consider the appellant’s claim that he did not
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know how to properly request leave on the ATAAPS, but found it incredible. ID
at 8. Whether the appellant had a motive to falsify his time and attendance is not
indicative of whether he acted intentionally since motive reflects only an
individual’s inducement to do an act. Black’s Law Dictionary 891 (9th ed. 2009).
In any event, to the extent that the administrative judge may have considered the
appellant’s leave balances or his lottery winnings, it is well established that
failure to mention all of the evidence of record does not mean that the
administrative judge did not consider it in reaching her decision. Marques v.
Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶11 The appellant also argues on review that, in analyzing the penalty, the
deciding official failed to properly consider the factors set forth by the Board in
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). PFR File,
Tab 1 at 11-12. Specifically, the appellant contends that the deciding official
did not give adequate consideration to his lack of prior discipline, the fact that the
incidents did not affect his function at work, that “he did not have notice until
afterwards,” and that his numerous medical problems during the period at issue
resulted in a high number of days absent. Id. at 12.
¶12 The record reflects that the appellant received a letter of reprimand on
August 26, 2014, for an incident of sleeping on duty that occurred on May 29,
2014. IAF, Tab 4, Subtab 4i, Subtab 4n at 1. In the Douglas factor checklist that
the deciding official completed, he noted the letter of reprimand under
Employee’s Past Disciplinary Record but indicated that it was a “neutral” factor,
not aggravating or mitigating, id., Subtab 4c at 2, and at hearing, he testified that
the letter of reprimand was not a significant factor in his penalty analysis,
Hearing Compact Disc (HCD). The administrative judge found that the letter of
reprimand met the criteria for consideration as past discipline, Bolling v.
Department of the Air Force, 9 M.S.P.R. 335, 339‑40 (1981) (stating that the
Board’s review of a prior disciplinary action is limited to determining whether
7
that action is clearly erroneous, if the employee was informed of the action in
writing, the action is a matter of record, and the employee was permitted to
dispute the charges before a higher level of authority than the one that imposed
the discipline), but she credited the deciding official’s testimony that he was not
influenced by the letter of reprimand, and it does not appear that the
administrative judge construed it to be an aggravating factor in her review. ID
at 13. In fact, the appellant should not have been considered to have had any past
discipline because, at the time of the offense for which he was removed
(January‑May 2014), he had no disciplinary record, as the letter of reprimand was
issued on August 26, 2014. See Wigen v. U.S. Postal Service, 58 M.S.P.R. 381,
384‑85 (1993). To the extent that the administrative judge erred in considering
the letter of reprimand, however, any such error did not prejudice the appellant’s
substantive rights because the administrative judge found, and we agree, that,
even in the absence of any prior discipline, removal is a reasonable penalty for
the sustained charge. Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984).
¶13 In considering the effect of the appellant’s offense on his ability to perform
his duties and on his supervisor’s confidence in him, the deciding official
acknowledged that the appellant’s misconduct did not affect his ability to do his
job or his supervisor’s confidence or trust in his ability to do his job, but that it
did affect his confidence in the appellant’s ability to uphold the organization’s
mission. IAF, Tab 4, Subtab 4c at 3. The deciding official’s testimony was in
accord as he described the appellant’s high level of responsibility as a Watch
Supervisor and instructor in the Air Traffic Control facility and explained that the
misconduct he committed diminished the overall trust he had in the
appellant. HCD.
¶14 Regarding the appellant’s claim that he “did not have notice until
afterwards,” the deciding official determined, and the administrative judge found,
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that the appellant knew or should have known, when he completed his time and
attendance records as he did, that he was representing that he worked
approximately 91.75 hours more than he actually did. IAF, Tab 4, Subtab 4b; ID
at 8. That conclusion is unaffected by the fact that the agency did not discover
the discrepancies until sometime after the appellant entered the data.
¶15 The appellant next argues that his medical problems and related absences
should have been considered a mitigating factor, rather than a “neutral” factor as
the deciding official described it. He found that the appellant’s medical problems
and absences did not affect his ability to properly fill out his time card or
otherwise affect his judgment. IAF, Tab 4, Subtab 4c at 7. The administrative
judge agreed, finding that any claim that the appellant’s sleep apnea contributed
to his misconduct was inconsistent with evidence that he otherwise performed
adequately at work and submitted leave in ATAAPS properly for some absences.
ID at 12.
¶16 Because the agency’s charge has been sustained, the Board’s review of the
penalty selection is limited to determining whether it is so excessive as to be an
abuse of discretion or is otherwise arbitrary, capricious, or unreasonable.
Douglas, 5 M.S.P.R. at 302. The administrative judge found that the deciding
official carefully considered the appropriate Douglas factors, both aggravating
and mitigating, in determining to remove the appellant, and that removal for the
sustained charge is otherwise within the tolerable limits of reasonableness. ID
at 10-13. In considering the appellant’s challenges to that finding, we agree that
his misconduct is serious, that his actions caused his supervisor to lose trust in
him, that no similarly situated employees were treated more favorably, 2 that the
appellant was aware that his actions would be considered inappropriate, that he
2
The agency found that, during the period at issue, two of the appellant’s coworkers
also had discrepancies in their time and attendance records, but that, because the
coworkers had only minor infractions of 3 hours and 8¼ hours, as opposed to the
appellant’s 91.75 hours, they were not valid comparators. IAF, Tab 4, Subtab 4d at 1-2.
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lacked rehabilitative potential based on his refusal to take responsibility for his
actions, and that there was a lack of alternative sanctions to deter such actions in
the future. Further, we agree with the administrative judge that, notwithstanding
the appellant’s years of service and acceptable performance, the penalty of
removal is within the tolerable limits of reasonableness for the sustained charge.
¶17 Accordingly, we affirm the initial decision.
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:
U.S. 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).
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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.