UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICARDO J. RIVERA, DOCKET NUMBER
Appellant, DC-0752-15-0053-I-1
v.
SOCIAL SECURITY DATE: January 6, 2017
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ricardo J. Rivera, Waldorf, Maryland, pro se.
Daniel Hutman, Esquire, and Michael Davio, Baltimore, Maryland, 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 id entified 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).
¶2 The appellant was employed as a Translator, GS-1040-7, with the Social
Security Administration, Office of Disabilit y Adjudication and Review, Office of
Appellate Operations in Baltimore, Maryland. Initial Appeal File (IAF), Tab 12
at 104. His position description required him to have knowledge of both English
and Spanish at the level of a native-born speaker, and his job duties required him
to translate documents in claim files from Spanish into English. IAF, Tab 15
at 33, 35. The agency removed the appellant from this position on five charges:
(1) conduct unbecoming a Federal employee (four specifications); (2) making a
statement that resulted in anxiety or disruption in the workplace ( two
specifications); (3) absence without leave; (4) failure to follow leave procedures;
and (5) lack of candor (eight specifications). IAF, Tab 12 at 106-09.
¶3 The appellant filed an appeal of his removal disputing the charges. IAF,
Tab 1. During the adjudication of his appeal, the appellant motioned for the
appointment of an interpreter, arguing that English is not his first language and he
needed the assistance of an interpreter to proceed with his appeal. IAF, Tab 31
at 4. The administrative judge denied the motion on the basis that the appellant
could not credibly assert that he required an interpreter to proceed with his appeal
because he was employed by the agency as a translator and was required to speak
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both English and Spanish at the level of a native-born speaker. IAF, Tab 35. The
appellant moved for certification of the issue as an interlocutory appeal. IAF,
Tab 36. The administrative judge denied the motion, finding that the appellant
failed to meet any of the criteria established for granting interlocutory
certification. IAF, Tab 38. Following the administrative judge’s denial, the
appellant introduced additional evidence regarding his English proficiency. IAF,
Tabs 39, 41. Despite finding no evidence to support the appellant’s claim of a
lack of English proficiency, the administrative judge granted the appellant’s
motion for an interpreter but limited the assistance to the hearing only. IAF,
Tab 42 at 1.
¶4 In the midst of the pleadings regarding interpreter assistance, the parties
also engaged in several discovery disputes. Upon an agency motion to compel
the appellant to comply with discovery requests, the administrative judge ordered
him to comply and warned that failing to comply with discovery orders may result
in the imposition of sanctions. IAF, Tabs 23-26, 28. The appellant submitted
discovery responses, but, after deeming them duplicative and deficient, the
agency filed a motion for sanctions against the appella nt. IAF, Tab 30, Tab 33
at 5, 13-14. Without yet issuing an order on the agency’s motion, t he
administrative judge again warned the appellant that a failure to comply could
result in the imposition of sanctions. IAF, Tab 43 at 1, Tab 48 at 1. The
appellant failed to comply, and the agency renewed its motion. IAF, Tab 51. The
administrative judge granted the motion and prohibited the appellant from
asserting any additional affirmative defenses and from submitting evidence and
argument regarding his existing affirmative defenses. IAF, Tab 53 at 2-3.
¶5 Subsequently, in addition to discovery sanctions, the administrative judge
also cancelled the hearing as a sanction against the appellant for failure to follow
Board orders. IAF, Tab 74. Prior to the hearing, the appellant failed to follow at
least two Board orders, both requiring him to appear for prehearing conferences
and to demonstrate good cause for his failure to do so. IAF, Tabs 67-68. The
4
administrative judge warned the appellant that, if he failed to appear for the
prehearing conference or failed to demonstrate good cause for his failure to do so,
his hearing could be cancelled or his appeal could be dismissed. IAF,
Tabs 68-69. The appellant ultimately responded, stating that he lost his
telephone, which was his only means to communicate and check the Board’s
repository and, therefore, he was not aware of the Board’s orders. IAF, Tab 70
at 4. The agency submitted evidence showing that the appellant was able to
communicate and had sent an email during the time he said his telephone was
lost. IAF, Tab 71 at 4, 7. As a result, the administrative judge issued sanctions
against the appellant and cancelled his hearing. IAF, Tab 74 at 4-5. Accordingly,
an initial decision was issued on the written record. IAF, Tab 80, Initial
Decision (ID).
¶6 In the initial decision, the administrative judge sustained all five charges
(including all specifications except for one) and determined that the appellant
failed to prove his affirmative defenses. ID at 5-15. She also found that the
agency established a nexus between the appellant’s removal for the charged
misconduct and the efficiency of the service and that the penalty of removal was
within the bounds of reasonableness. ID at 15-19.
¶7 The appellant has filed a petition for review alleging a due process
violation, harmful error, and multiple claims of an abuse of discretion. Petition
for Review (PFR) File, Tab 1 at 5. He also challenges the administrative judge’s
factual and legal findings regarding the merits of his appeal. Id. The agency has
filed an opposition to the appellant’s petition, PFR File, Tab 3, to which the
appellant has replied, PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 On review, the appellant asserts that the agency’s and the Board’s failure to
provide interpreter services throughout the removal and appeals processes is a
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constitutional due process violation, constitutes harmful error, 2 and is an abuse of
discretion by the administrative judge. PFR File, Tab 1 at 5, 10. Constitutional
due process requires only notice and a meaningful opportunity to respond to an
agency’s charges. See Stephen v. Department of the Air Force, 47 M.S.P.R. 672,
680 (1991). Here, it is undisputed that the appellant received notice of the
charges against him, but he appears to assert that any response without the
assistance of an interpreter was not a meaningful opportunity to respond. PFR
File, Tab 1 at 10. We have not found any evidence in the record showing that the
appellant requested, and was denied, the assistance of an inte rpreter prior to his
removal. Moreover, the appellant’s response to the proposal was substantive,
comprehensive, and in fully coherent English, and there is no evidence that the
deciding official could not understand or was unable to rely on that response.
IAF, Tab 12 at 104-06, 150-52. Accordingly, we find that the appellant was
provided with a meaningful opportunity to respond and that his constitutional d ue
process claim has no merit.
¶9 The appellant also asserts that the administrative judge’s failure to
invalidate the agency action due to the agency’s alleged constitutional due
process violation constitutes harmful error. PFR File, Tab 1 at 5, 12. A
successful claim of harmful error under 5 U.S.C. § 7701(c)(2)(A) requires the
appellant to show that an agency’s procedural error was likely to have caused the
2
The basis for the appellant’s due process and harmful error claims on review and his
due process and harmful error claims before the administrative judge are not the same.
Before the administrative judge, the appellant argued that the agency violated his
procedural due process rights and engaged in harmful error by failing to provide him
with all the material upon which it relied to support the proposed removal, in violation
of 5 C.F.R. § 752.404(b)(1). IAF, Tab 12 at 137-41, Tab 13 at 45. The administrative
judge found that the appellant failed to prove these claims by preponderant evidence.
ID at 13-15. On review, the appellant does not reassert these claims as the basis for the
due process violation and harmful error claims, but rather he asserts that the agency’s
and the Board’s failure to appoint an interpreter is a violation of his constitutional due
process rights and a harmful error. PFR File, Tab 1 at 5, 10. We address these
assertions only, as the administrative judge’s findings on the appellant’s initial claims
are unchallenged on review, and we see no reason to disturb them.
6
agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error. Stephen, 47 M.S.P.R. at 681, 685; 5 C.F.R.
§ 1201.4(r). Although the appellant claims that the administrative judge’s actions
constitute harmful error, the appellant has not presented any evidence to suggest
that the agency committed an error that caused a substantial prejudice to his
rights. As such, the appellant’s harmful procedural error claim has no merit.
¶10 The appellant further asserts that the administrative judge’s denying the
appellant’s request for an interpreter during Board proceedings was an abuse of
discretion. PFR File, Tab 1 at 5. He argues that he was entitled to interpreter
services because he is a Limited English Proficient (LEP) individual and
Executive Order (EO) 13166 requires all agencies to provide a system by which
an LEP person can meaningfully access the agency’s services. PFR File, Tab 4
at 4. One earns LEP status if one speaks primarily a language other than English
and has a limited ability to read, write, speak or understand English. See
L EP .gov, https://www.lep.gov/faqs/faqs.html (last visited January 4, 2017). We
find the appellant does not qualify as an LEP individual. He was employed by the
agency as a translator whose job description includes the ability to understand
and communicate in both English and Spanish. IAF, Tab 15 at 35. Moreover, all
of the appellant’s pleadings have been written in coherent English. Accordingly,
we find that the appellant is not limited in his ability to read, write, and
understand English and is, therefore, not entitled to any alleged protection under
EO 13166 or any other proffered authority.
¶11 Further, after considering the appellant’s new evidence, the administrative
judge approved the use of an interpreter during the hearing. IAF, Tab 42.
Cancelling the hearing as a sanction is inconsequential to the question of whether
the administrative judge abused her discretion in denying the use of an
interpreter. Given the administrative judge’s primary responsibility for ruling on
motions and the deferential standard under which the Board reviews such rulings,
7
we find no abuse of discretion under these circumstances. See 5 C.F.R.
§ 1201.41(b).
¶12 The appellant also argues that the administrative judge abused her
discretion when she denied the appellant’s motion for interlocutory certification.
PFR File, Tab 1 at 5. In her ruling, the administrative judge conscientiously
considered the issue in question in conjunction with the criteria set forth by the
Board to certify interlocutory review. IAF, Tab 38; see Robinson v. Department
of the Army, 50 M.S.P.R. 412, 418 (1991); 5 C.F.R. § 1201.92. She determined
that the issue did not warrant such review. IAF, Tab 38. We find no abuse of
discretion in this ruling. After denying the appellant’s request, the administrative
judge agreed to provide an interpreter for the appellant during the hearing,
making a substantial portion of the appellant’s argument moot. IAF, Tab 42.
Further, the appellant has now had an opportunity to challenge the administrative
judge’s underlying ruling on review, and thus any interlocutory certification
was not necessary. See Ryan v. Department of the Air Force, 117 M.S.P.R. 362,
¶ 5 n.1 (2012). As such, we find this claim to be without merit.
¶13 The appellant argues, moreover, that the administrative judge abused her
discretion when she imposed sanctions against him. PFR File, Tab 1 at 5.
Regarding the sanction of limiting submissions and affirmative defenses, we find
that the administrative judge did not abuse her discretion. On several occasions,
the administrative judge ordered the appellant to provide documents to the
agency. IAF, Tabs 28, 43, 48. We agree with her finding that the record contains
evidence that the appellant refused to comply with these orders and additionally
find that it was within her discretion to impose this sanction as a result. See
5 C.F.R. § 1201.43. Such a determination is left to the sound discretion of the
administrative judge, and we find no abuse of that discretion. See Curtin v.
Office of Personnel Management, 846 F.2d 1373, 1378 (Fed. Cir. 1988); 5 C.F.R.
§ 1201.41(a)-(b).
8
¶14 Regarding the sanction of cancelling the hearing, w e similarly find that the
administrative judge did not abuse her discretion. The record demonstrates that
the appellant failed to appear for two prehearing conferences and was warned that
a failure to respond to an order to show cause could result in cancelling his
hearing or his appeal being dismissed with prejudice. IAF, Tabs 67-69. The
appellant responded to the order to show cause, but the administrative judge
found that the appellant’s response blatantly provided false information. IAF,
Tab 70 at 4, Tab 74 at 3-4. Despite finding that the appellant exhibited both
negligence and bad faith in complying with her orders, findings that could justify
a dismissal with prejudice, see Davis v. Department of Commerce, 120 M.S.P.R.
34, ¶ 18 (2013), the administrative judge instead cancelled the requested hearing,
IAF, Tab 74. Given these extraordinary circumstances, we find the administrative
judge’s sanction to be appropriate and not an abuse of discretion. See Hart v.
Department of Agriculture, 81 M.S.P.R. 329, ¶ 5 (1999) (stating that an
appellant’s right to a hearing should not be denied as a sanction absent
extraordinary circumstances).
¶15 The appellant also alleges that the administrative judge abused her
discretion when she denied his motions for reconsideration and admitted
deposition testimony into evidence. PFR File, Tab 1 at 5. We find no merit in
these claims, as the administrative judge has wide discretion to control the
proceedings in front of her and to receive relevant evidence. Tisdell v.
Department of the Air Force, 94 M.S.P.R. 44, ¶ 13 (2003); 5 C.F.R.
§ 1201.41(b)(3). The appellant has provided no evidence or compelling argume nt
to support his claims that the administrative judge’s rulings extended beyond this
well-established discretion.
¶16 Next, the appellant challenges the administrative judge’s credibility
findings, arguing that the administrative judge found him less credib le because of
his alleged limited English proficiency and that the credibility findings were
incomplete. PFR File, Tab 1 at 10-11. When, as here, no hearing was held and
9
the administrative judge’s findings were based solely on the written record, the
Board will give those findings only the weight warranted by the record and the
strength of her conclusions. Donato v. Department of Defense, 34 M.S.P.R. 385,
389 (1987).
¶17 Here, the administrative judge’s credibility findings were appropriately
based on the factors set forth in Hillen v. Department of the Army, 35 M.S.P.R.
453, 458 (1987). ID at 5-7, 10. She considered whether the witnesses made
sworn or unsworn statements and whether they were internally and externally
consistent with other statements in the record. Id. She relied specifically on the
appellant’s own admissions to some of the conduct as well as admissions in his
deposition that the agency’s witnesses had no reason to lie about him. ID at 6.
We find that there are no other, more persuasive, indicia of credibility in the
record than those relied upon by the administrative judge that would form a basis
to disturb her findings. Moreover, the appellant has not presented any specific
evidence in the record that demonstrates error in the administrative judge’ s
findings, nor has he presented any evidence to support his claim that the
administrative judge’s credibility findings were based on his alleged limited
English proficiency. Accordingly, we find this challenge to be without merit.
¶18 The appellant also makes broad and general challenges to the sufficiency of
the evidence, the nexus between the penalty for the charges and the efficiency of
the service, and the reasonableness of the penalty of removal. PFR File, Tab 1
at 4, 10. The appellant has failed to identify any specific evidence in the record
that demonstrates error in the administrative judge’s findings. The administrative
judge thoroughly examined each specification of all the charges, weighed and
discussed the evidence, and determined that the agency met its b urden of proof to
sustain the charges. ID at 5-12. She also considered and discussed record
evidence in finding that the agency demonstrated a nexus to the efficiency of the
service and that the penalty of removal was reasonable. ID at 15-19. We find
that the appellant’s generalized assertions on review amount to nothing more than
10
mere disagreement with these conclusions, and we find no basis to disturb these
findings. See, e.g., 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); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
¶19 Finally, the appellant argued briefly on review that the administrative judge
should be “disqualified from any further involvement in the appeal based on
demonstrated personal bias.” PFR File, Tab 1 at 5. In making a claim of bias, an
appellant must overcome the presumption of honesty and integrity on the par t of
the administrative judge. Protopapa v. Department of Transportation,
14 M.S.P.R. 455, 459 (1983). The mere fact that the administrative judge
does not accept the appellant’s assertions or interpret testimony in the fashion the
appellant claims is correct does not constitute bias. Id. Here, the appellant’s
contention of bias is not based on any evidence of record but rather only
demonstrates his disagreement with the administrative judge. Thus, we find the
appellant’s claim of bias to be without merit.
¶20 We have considered the appellant’s arguments on review but have
concluded that a different outcome is not warranted. 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:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
11
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 d ecision 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 a ppeal 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
Washington, D.C. Acting Clerk of the Board