Kwi O'Connell v. Department of Defense , 374 F. App'x 30 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-3051
KWI O’CONNELL,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
Kwi O’Connell, of Spanaway, Washington, pro se.
Alex P. Hontos, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Kirk T. Manhardt, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-3051
KWI O’CONNELL,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
Petition for review of the Merit Systems Protection Board
in case no. SF0752090313-I-1.
___________________________
DECIDED: April 12, 2010
___________________________
Before BRYSON, CLEVENGER, and LINN, Circuit Judges.
PER CURIAM.
DECISION
Kwi O’Connell appeals the decision of the Merit Systems Protection Board
upholding her removal from her civilian position with the Department of Defense. We
affirm.
BACKGROUND
Ms. O’Connell was employed as a Sales Store Checker at the McChord Air
Force Base Commissary. In 2008, Ms. O’Connell was investigated for engaging in retail
“sweethearting” in which she and another cashier, Adela Cosare, were suspected of
providing unauthorized discounts to one another through the improper crediting of
coupons.
An audit of transactions performed by Ms. O’Connell between March 16, 2008,
and April 13, 2008, disclosed that she had entered $822.03 in unauthorized deductions,
an amount that was later revised to $817.03. The deductions were made by scanning
more than one coupon per item, applying invalid coupons or ones that did not match
any purchased items, and using a bypass code to enter manual deductions for amounts
that were greater than any available coupon amount (and sometimes greater than the
price of any of the purchased items). Those deductions resulted in numerous
transactions in which the amount paid by the purchaser was only a small fraction of the
original total cost of the items purchased. For example, journal entries discovered in the
audit showed a payment of $15.92 instead of $140.83 (journal transaction 35 on March
17); a payment of $7.20 instead of $125.73 (journal transaction 54 on March 30); a
payment of $13.20 instead of $155.77 (journal transaction 64 on March 30); a payment
of $9.30 instead of $108.75 (journal transaction 11 on March 31); and a payment of
$63.47 instead of $185.96 (journal transaction 56 on April 13).
On May 25, when she returned from leave and reported for work, Ms. O’Connell
was escorted to the base police department together with Ms. Cosare. After being
advised of her legal rights, Ms. O’Connell declined to provide a statement. Ms. Cosare
provided a sworn written statement in which she admitted engaging in “sweethearting”
and stated that she had done so at Ms. O’Connell’s behest. Thereafter, the base
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commander issued an order barring Ms. O’Connell from entering McChord Air Force
Base, which prevented her from returning to work at that time.
On January 30, 2009, the Defense Commissary Agency issued a decision
removing Ms. O’Connell from her position for conversion of government property and
unauthorized absence from work. Ms. O’Connell appealed to the Board.
After conducting a hearing, the administrative judge sustained both charges.
With respect to the conversion charge, the administrative judge determined that the
journal transactions, together with Ms. Cosare’s admission of wrongdoing and other
witness testimony, clearly supported the allegations of conversion. The agency did not
possess the actual coupons used in the transactions, other than for April 13, because
coupons are ordinarily turned into the cash office on a daily basis. However, the
administrative judge concluded that the journal transactions provided strong
circumstantial evidence of conversion, even without the coupons. In any event, the
administrative judge found the April 13 transactions alone to be sufficient to support the
conversion charge.
Ms. O’Connell testified and denied the conversion charge. Ms. Cosare also
denied the charge, disavowing her earlier statement admitting her involvement in the
misconduct. The administrative judge found both witnesses to be lacking in credibility.
The administrative judge considered Ms. O’Connell’s demeanor “evasive and guarded”
and observed that “when she did not want to respond she would answer that she did not
know, that she did not remember or acted like she did not understand,” even though she
had no difficulty understanding and responding to questioning by her own
representative. The administrative judge discredited Ms. Cosare’s testimony, finding it
2010-3051 3
to be “totally inconsistent with her prior written statement where she acknowledged that
on approximately five occasions she engaged in improper use of coupon.”
The administrative judge also sustained the charge of unauthorized absence
because, even though Ms. O’Connell contended that she reported for work on May 25
before being escorted to the police station, she conceded that she did not report for
work on May 26 or thereafter. The administrative judge acknowledged that the base
commander’s order barring Ms. O’Connell from the base prevented her from reporting
to her work station. The administrative judge concluded, however, that the order
resulted from Ms. O’Connell’s own misconduct and that there was “no evidence to show
that she requested a modification of the debarment order or that the agency played any
role in the Commander’s decision to bar her.”
DISCUSSION
On appeal, Ms. O’Connell raises a number of objections to the Board’s decision.
Most of those objections constitute disagreements with factual findings made by the
administrative judge with respect to the conversion charge. Our review of factual
findings is deferential and limited to assessing whether the findings were supported by
substantial evidence. “We do not substitute our judgment for that of the board as to the
weight of the evidence or the inferences to be drawn therefrom.” Cross v. Dep’t of
Transp., 127 F.3d 1443, 1448 (Fed. Cir. 1997). In this case, after a close review of the
facts in the record, we are convinced that the evidence amply supports the
administrative judge’s conclusion that the agency proved the charged misconduct.
First, Ms. O’Connell contests the accuracy and completeness of the evidence
submitted by the agency with respect to the charged conversion. She argues that the
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agency’s failure to provide the actual coupons from the days before April 13 means that
the agency only supplied “19 percent of the evidence in question.” She also complains
that the April 13 booklet of coupons contains errors that undermine the validity of that
evidence, including the presence of 116 more coupons than accounted for in the journal
transactions, and a discrepancy of $12.36 in the total value of coupons credited. Ms.
O’Connell also lists eight $1.00 Centrum coupons and five other coupons that she
claims should have been present, but which she was unable to locate in the booklet.
The administrative judge, however, did not rely solely on the documentary evidence of
the coupons; rather, she was persuaded that the evidence from the journal transactions
was supported by credible testimony from the agency’s witnesses, as well as other
evidence such as Ms. Cosare’s written admission. Ms. O’Connell’s complaints as to
minor errors with respect to the coupons does not undermine the administrative judge’s
finding that the evidence supported the charge of conversion.
Ms. O’Connell raises a number of other evidentiary and factual issues, including
her contentions that (1) the agency failed to prove the transactions at issue involved Ms.
Cosare as opposed to other customers; (2) the investigating officer failed to take any
investigative notes; (3) a review of local supermarket prices shows that deep discounts
of more than 70 percent are not unknown; and (4) it was accepted practice to use the
manual bypass code to combine coupons as a way of speeding up the checkout lines.
As a more general matter, Ms. O’Connell also challenges the administrative judge’s
finding that her testimony was not credible. She argues that she has trouble
understanding English, that she was under medication at the time of the hearing, and
that the questioning at the hearing was “rude and too direct.” Those arguments all
2010-3051 5
constitute challenges to the administrative judge’s weighing of the evidence; they do not
persuade us that the administrative judge’s conclusion that the agency proved its
charge of conversion is unsupported by substantial evidence.
Ms. O’Connell claims that the agency failed to prove specific intent to commit the
conversion offense set forth in 18 U.S.C. § 641, which requires that the wrongdoer
“must have had knowledge of the facts, though not necessarily the law, that made the
taking a conversion.” Morissette v. United States, 342 U.S. 246, 271 (1952). As the
administrative judge noted, however, Ms. O’Connell acknowledged entering the
transactions at issue; Ms. Cosare admitted that she had engaged in the misconduct with
Ms. O’Connell; and an eyewitness testified to the acts being committed on multiple
occasions. The evidence was thus sufficient to establish the requisite intent.
Ms. O’Connell next contends that the agency “failed to show the cash cage’s
involvement in daily transactions, and that the coupons provided to the cash cage were
for all the transactions completed for that day.” She also states that the cash office
accepted her register each day and that this “partially alleviates the cashier of further
responsibility,” because the acceptance indicates that there were no problems or
irregularities with those transactions. To the extent that those contentions challenge the
sufficiency of the evidence, we reject them; as noted, the evidence before the
administrative judge plainly constituted substantial evidence of the conversion. To the
extent that those statements are directed to the nexus requirement of the pertinent
statute, they misapprehend the nature of the nexus that must be proved. The nexus
requirement relates to whether the agency action is taken “for such cause as will
promote the efficiency of the service.” 5 U.S.C. § 7513(a). The charged acts of
2010-3051 6
conversion plainly satisfy that requirement, as there can be no dispute that the Defense
Commissary Agency has a strong interest in preventing its cashiers from engaging in
the conversion of government property.
Ms. O’Connell contends that the penalty of removal is overly harsh and
disproportionate to the offense, and that a proper consideration of the so-called Douglas
factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), would
weigh in favor of leniency. In essence, she claims that she is entitled to a lesser penalty
because she has a relatively clean disciplinary record, her offense was “unintentional,”
and she has since learned her lesson.
We have noted that the choice of penalty “is committed to the sound discretion of
the employing agency and will not be overturned unless the agency’s choice of penalty
is wholly unwarranted in light of all the relevant factors.” Guise v. Dep’t of Justice, 330
F.3d 1376, 1382 (Fed. Cir. 2003). The Douglas factors are generally relevant in
selecting a penalty, but they are not a checklist that the agency must “appl[y]
mechanically.” Nagel v. Dep’t of Health & Human Servs., 707 F.2d 1384, 1386-87 (Fed.
Cir. 1983). Theft of a significant amount of property by a person occupying a position of
trust is a serious offense for which an agency can reasonably remove an employee
even in the face of other factors favoring the employee. See Vannoy v. Office of Pers.
Mgmt., 75 M.S.P.R. 170, 175-76 (1997) (removal is a reasonable penalty for a first-time
offense of theft where the value of the property is not de minimis). In light of the
seriousness of the offense and the fact that the offense goes to the core of Ms.
O’Connell’s responsibilities, we reject Ms. O’Connell’s contention that the agency’s
choice of penalty was “wholly unwarranted.”
2010-3051 7
Ms. O’Connell briefly adverts to several other arguments, none of which has any
merit. She complains that she was given no advance warning of issues or concerns
with her job performance. But, as the government properly notes, Ms. O’Connell was
removed under adverse-action procedures rather than performance-based procedures,
and thus is not entitled to advance notice as to her performance. She asserts that the
debarment order issued by the base commander was a violation of her due process
rights under the Fifth Amendment because it was made without any notice or hearing.
The debarment order, however, was issued by the base commander, not the employing
agency; moreover, even assuming the debarment order was procedurally flawed, the
principal charge against Ms. O’Connell was the conversion charge; any error relating to
the charge of unauthorized absence from work was harmless. See Guise, 330 F.3d at
1381-82. Finally, Ms. O’Connell argues that her “civil rights” were violated because she
was arrested even though many of the coupons had already been processed by the
agency. The decision to escort her to the base police station for questioning was
supported by the evidence of the audit, and even if the decision to detain her were
somehow improper, any impropriety in that regard had no effect on the case against her
for conversion of government property.
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