Wilson v. Department of the Army , 625 F. App'x 543 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HORACE LEE WILSON,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2015-3077
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-13-0551-I-1.
______________________
Decided: August 11, 2015
______________________
HORACE LEE WILSON, Madison, AL, pro se.
CHRISTOPHER KEITH WIMBUSH, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
PATRICIA M. MCCARTHY.
______________________
Before CHEN, LINN, and HUGHES, Circuit Judges.
2 WILSON v. ARMY
PER CURIAM.
Petitioner Horace Lee Wilson (Mr. Wilson) appeals
from a final order of the Merit Systems Protection Board
(Board) that sustained Mr. Wilson’s removal from his
position as an administrative assistant with Headquar-
ters U.S. Army Material Command (AMC), Office of Equal
Employment Opportunity (EEO), Redstone Arsenal,
Alabama. [JA 8] Wilson v. Dep’t of the Army, No. AT-
0752-13-055-I-1 (MSPB Dec. 4, 2014) (Final Order).
Because substantial evidence supports the Board’s deci-
sion, we affirm.
BACKGROUND
In his position at the EEO, Mr. Wilson was the EEO
Office’s timekeeper and helped manage the Workforce
Recruitment Program (WRP), a program designed to
provide job opportunities for students with disabilities. In
2012, the AMC Chief of Staff appointed an investigating
officer to investigate alleged time card fraud and abuse
among certain EEO employees. After examining entrance
turnstile records, sent emails, requests for leave, time
submitted to the timekeeping system, and a Government-
provided laptop, the investigating officer submitted a
report detailing her findings. The report concluded that
Mr. Wilson had committed time card fraud or abuse,
improperly used Government resources for personal
benefit, engaged in unprofessional misconduct, misused a
Government common access card, and was derelict in his
duties. As a result of this investigation and one addition-
al investigation, the Chief of Staff proposed to remove Mr.
Wilson on the charge of conduct unbecoming of a Federal
employee, alleging eight separate grounds. After consid-
ering the evidence, the Chief of Staff found that seven of
the grounds were supported by a preponderance of the
evidence and concluded that removal was appropriate. At
the same time, the Chief of Staff offered Mr. Wilson the
option of remaining employed at a reduced grade in a
WILSON v. ARMY 3
position outside of the EEO office. Mr. Wilson rejected
this offer. He was thereafter removed from his position
and he filed a complaint with the MSPB.
In its initial decision, the administrative judge (AJ)
concluded that the agency had carried its burden of proof
on six of the seven grounds. In the Final Order, the full
Board expressed concern about the AJ’s credibility deter-
minations on the first three allegations. The Board
determined, however, that the AJ correctly found that the
remaining three allegations were supported by a prepon-
derance of the evidence, i.e., that Mr. Wilson: (1) commit-
ted time card abuse or fraud; (2) used Government
resources to perform duties associated with his private
business; and (3) failed to follow instructions or cooperate
with the acting director of the EEO office. The Board
further found these three bases sufficient to sustain Mr.
Wilson’s removal. Accordingly, the Board explained that
it was unnecessary to decide whether to overturn the AJ’s
findings on the first three allegations.
Mr. Wilson timely appealed the Board’s Final Order.
On appeal, Mr. Wilson appears to assert three general
categories of objections to the Board’s Final Order. First,
he argues that the Board failed to consider the entirety of
the evidence in the record. Second, he argues that the
Board erred in accepting the AJ’s credibility determina-
tions on the three sustained allegations. Finally, he
asserts that he was treated unfairly during the initial
investigation and that the Board should have considered
this treatment in reaching its final decision. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of Board decisions is defined narrowly and
limited by statute. We must affirm a Board decision
unless it is (1) arbitrary or capricious or not in accordance
with law, (2) obtained without procedures required by
law, rule, or regulation having been followed, or (3) un-
4 WILSON v. ARMY
supported by substantial evidence. 5 U.S.C. § 7703(c)(1)–
(3); Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed.
Cir. 1984). Under the substantial evidence standard, we
must affirm the Board’s decision if the record contains
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). However,
“[t]he evaluation of witness credibility is a matter within
the discretion of the AJ and is virtually unreviewable.”
Frey v. Dep’t of Labor, 359 F.3d 1355, 1361 (Fed. Cir.
2004).
Before the Board will sustain an agency’s decision to
discharge an employee, the agency must establish by
preponderant evidence that (1) the charged conduct
occurred; (2) there is a “relationship between the miscon-
duct and the objective of promoting the efficiency of the
service”; and (3) that the penalty imposed is reasonable.
James v. Dale, 355 F.3d 1375, 1378 (Fed. Cir. 1985). Mr.
Wilson does not appear to challenge the Board’s conclu-
sion that a nexus existed between his misconduct and the
objective of promoting the efficiency of the service.
I
The Board’s decision sustaining the removal rested on
its finding that a preponderance of the evidence supported
three grounds for the “conduct unbecoming” charge. On
appeal, Mr. Wilson asserts that evidence in the record
supports reversal of the Board’s conclusion. Because
substantial evidence supports the Board’s conclusion,
however, we must affirm the Board’s finding.
Mr. Wilson first asserts that the Board failed to con-
sider evidence demonstrating that he did not commit time
card abuse. He points to his statements that he often
performed his duties off-site and that his immediate
supervisor authorized his off-site work. He also argues
that on many occasions, the security turnstiles that
monitored whether he entered the building were not
WILSON v. ARMY 5
working. Mr. Wilson presented these arguments to the
AJ and the Board. The Board also considered Army’s
evidence that Mr. Wilson “did not enter the building at all
on 10 days and arrived late on 67 days without adequate
leave coverage.” Final Order at 6. In addition, the Board
credited the testimony of “several coworkers” who “attest-
ed that the appellant often arrived late, left early, took
extended lunches, or was otherwise unaccounted for
during the day.” Id. The AJ found Mr. Wilson’s state-
ments less persuasive than the testimony of his cowork-
ers, noting that Mr. Wilson was unable to account for any
of his movements during these absences, and in favor of
testimony that at least one turnstile was operational at
all times and that security personnel would not routinely
allow employees to circumvent security protocols.
Mr. Wilson also argues that his personal use of his
Government computer was de minimis. Both the AJ and
the Board considered the Army’s evidence that over half
of the emails that Mr. Wilson sent between April 21,
2012, and August 31, 2012, were unrelated to official
work duties. In August alone, seventy of the eighty-nine
emails were unrelated to work duties. The Board further
considered Mr. Wilson’s decision to engage in an interview
with a local newspaper during his duty hours to promote
his private business. Because of the vast quantity of non-
work related use, the AJ and the Board therefore rejected
Mr. Wilson’s de minimis argument.
Finally, Mr. Wilson contends that the Board should
not have credited the testimony of the acting EEO officer
to find that Mr. Wilson failed to follow instructions and
cooperate with a supervisor. But such credibility deter-
minations are “virtually unreviewable.” Moreover, the
Board’s conclusion was also supported by documentary
evidence, including emails that Mr. Wilson sent to the
acting EEO officer that reveal disrespectful and hostile
behavior towards his superior.
6 WILSON v. ARMY
Based on the Board’s findings and our limited ability
to review credibility determinations, we find Mr. Wilson’s
arguments unpersuasive. The Board’s decision that the
charged conduct occurred is supported by substantial
evidence.
II
The determination of an appropriate employment
penalty is a matter committed primarily to the discretion
of the employer and can be reversed only for an abuse of
discretion. See Lachance v. Devall, 178 F.3d 1246, 1251
(Fed. Cir. 1999). The penalty must be reasonable in light
of the sustained charges, and we have “effectively defined
reasonable in this context to mean merely that the agen-
cy’s choice of penalty not be grossly disproportionate to
the offense.” Webster v. Dep’t of Army, 911 F.2d 679, 685
(Fed. Cir. 1990) (internal quotations omitted).
The Board found that Mr. Wilson’s removal was rea-
sonable given the serious nature of the charged conduct
and its direct relation to his primary work duties. His
disregard for his obligation to staff his duty position was
even more concerning because he was the EEO Office’s
timekeeper. The Board therefore reasonably found that
this misconduct “went to the very core of his responsibili-
ties of a federal employee” and called into question “his
reliability, veracity, trustworthiness, and willingness to
ethically perform his duties.” Final Order at 11. With
respect to his use of Government resources for personal
business, the Board found that Mr. Wilson “violat[ed] the
trust the agency has placed in him and destroy[ed] the
confidence established in the employer-employee relation-
ship.” Id. The Board further determined that his behav-
ior towards his superior “undermin[ed] management’s
capacity to maintain employee efficiency and discipline.”
Id. at 11–12. At bottom, because Mr. Wilson’s use of
government time and resources was known to his cowork-
ers and was reported in a local newspaper, the Board
WILSON v. ARMY 7
reasonably concluded that his behavior could undermine
other employees’ confidence in the EEO Office and dam-
age the public’s confidence in the Government as a whole.
Finally, the Board considered Mr. Wilson’s seventeen
years of service as a mitigating factor, but found that it
could not cure the damage caused by his misconduct.
For these reasons, the Board concluded that the pen-
alty was reasonable. Thus, to the extent that Mr. Wil-
son’s arguments can be construed as urging us to find
that his penalty is too severe, we disagree. The Army’s
chosen penalty is not “grossly disproportionate to the
offense” and therefore the Army did not abuse its discre-
tion when it decided to discharge Mr. Wilson.
COSTS
No Costs.
AFFIRMED