Ebron v. Department of Homeland Security , 475 F. App'x 752 ( 2012 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
RONNIE L. EBRON,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
__________________________
2011-3173
__________________________
Petition for Review of the Merit Systems Protection
Board in case no. DC-07752-11-002-I-1.
__________________________
Decided: April 10, 2012
__________________________
JONATHAN BELL, Law Office of Jonathan Bell, of Gar-
den City, New York, for petitioner.
ELIZABETH M. HOSFORD, Senior Trial Attorney, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent. With her on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
TODD HUGHES, Deputy Director. Of counsel was MICHAEL
S. MACKO, Attorney.
__________________________
Before PROST, MAYER, and WALLACH, Circuit Judges.
EBRON v. DHS 2
PER CURIAM.
INTRODUCTION
Ronnie L. Ebron appeals from the final decision of the
Merit Systems Protection Board (“Board”) sustaining Mr.
Ebron’s removal pursuant to 5 U.S.C. § 7513 for (1) fail-
ure to meet the requirements of the position of contract
specialist; (2) lack of candor; and (3) failure to provide
honest and complete information. Because the Board’s
findings are supported by substantial evidence and not
contrary to law, we affirm.
BACKGROUND
Ebron was hired in 2005 as a temporary employee, a
GS-12 Contract Specialist, with the Financial and Acqui-
sition Management Division, Flood, Fire and Mitigation
Branch of the Federal Emergency Management Agency
(“FEMA” or “Agency”). Ebron v. Dep’t of Homeland Sec.,
No. DC-07752-11-002-I-1, 2011 M.S.P.B. LEXIS 2023, at
*2 (M.S.P.B. Mar. 31, 2011). On his job application he
included his degree from St. Regis University, which he
received in 2001 for his “work experience, life experience,
education from training[,] and certificates.” He did not
include the credits he had from other schools on his
application. Id. at *7. In 2006, he was converted to a
Career-Conditional appointment as a GS-13 Contract
Specialist, a position which required the applicant to have
“completed a 4-year course of study leading to a bachelor’s
degree.” In his application for that position Ebron stated
he received his bachelor’s degree from St. Regis Univer-
sity in 2001, where he majored in “Acquisition Manage-
ment.” In 2008, Ebron was promoted to a GS-14 Contract
Specialist position. Before his promotion to GS-14, Ebron
received certification in the Federal Acquisition Certifica-
tion in Contracting Program, for which an applicant must
have a four-year degree or 24 credits of business classes
from an accredited institution. Ebron then applied for a
position at the Federal Law Enforcement Training Center
3 EBRON v. DHS
(“FLETC”). When the FLETC discovered Ebron’s degree
was not from an accredited institution it notified FEMA.
FEMA “proposed the appellant’s removal . . . based on the
charges of failure to meet the requirements of the posi-
tion, lack of candor, and failure to provide honest and
complete information.” Id. at *2. Ebron was removed
from his position in September 2010 and appealed the
Agency’s decision before the Board.
An Administrative Judge for the Board heard the ap-
peal and issued an initial decision which became the final
decision of the Board. The Board upheld the Agency’s
charges for four reasons. First, the Board found that
Ebron failed to meet the requirements of his position
because his position indisputably required a four year
bachelor’s degree from an accredited institution, and
there was no evidence Ebron had achieved such a degree.
Second, the Board found that because Ebron “failed to
disclose [that] his diploma from St. Regis was not from an
accredited institution his conduct demonstrated a lack of
candor.” Id. at *19. Third, the Board upheld the Agency’s
charge of failure to provide honest and complete informa-
tion because Ebron’s “conduct demonstrates he misled the
[A]gency about his degree from St. Regis with the inten-
tion of deceiving or defrauding the agency” by conveying a
“misleading impression with respect to material facts.” Id.
at *25 (citations omitted). Finally, the Board held that
“[a]lthough the appellant’s work record is worthy of
consideration, the penalty imposed is within the range of
reasonableness given the egregiousness of the misconduct.
[The Board found] the [A]gency properly considered the
relevant factors and its disciplinary penalty did not
exceed the bounds of reasonableness.” Id. at *34. Ebron
appeals the Board’s decision that FEMA satisfied its
evidentiary burden to prove the charges against him and
the Board’s decision that his removal was reasonable and
promoted the efficiency of the service. This court has
jurisdiction over the appeal pursuant to 28 U.S.C. §
1295(a)(9).
EBRON v. DHS 4
DISCUSSION
This court has limited jurisdiction to review appeals
from the Board. We affirm a Board decision unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with the law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see Chadwell v. MSPB, 629
F.3d 1306, 1308 (Fed. Cir. 2010). “Under the substantial
evidence standard of review, a court will not overturn an
agency decision if it is supported by ‘such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.”’ Jacobs v. Dep’t of Justice, 35 F.3d
1543, 1546 (Fed. Cir. 1994) (quoting Consol. Edison Co. v.
NLRB, 203 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126(1938)).
I.
Ebron argues that there was not substantial evidence
to support the Board’s decision to uphold the charges of
lack of candor and failure to provide honest and complete
information. First, Ebron asserts that the Agency failed
to demonstrate that Ebron knew in 2005 that St. Regis
was not an accredited institution, and he contends that he
did not know about St. Regis’s lack of accreditation until
2010. Additionally, Ebron argues that he had the educa-
tional requirements for the position he initially applied
for so he had “no reason, interest, or motive to lie about
his education” and he “believed” that he “possessed a
proper degree”; therefore, he argues, the charges of lack of
candor and failure to provide honest and complete infor-
mation are not supported by substantial evidence.
First, the Board considered when Ebron learned that
St. Regis was not an accredited institution: two witnesses
testified that Ebron had admitted he knew St. Regis was
not accredited in 2005, a third witness’s testimony did not
contradict their statements (she testified only that she
5 EBRON v. DHS
“did not hear” Ebron make such a statement), and the
Board held that Ebron’s testimony to the contrary lacked
credibility. The Board weighed Ebron’s testimony and
that of the other witnesses and concluded that the testi-
mony supporting Ebron’s position was less credible,
finding that Ebron knew St. Regis was not accredited.
“The determination of the credibility of the witnesses is
within the discretion of the presiding official who heard
their testimony and saw their demeanor.” Griessenauer v.
Dep’t of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985). The
Board’s determination of witnesses credibility is “virtually
unreviewable.” Hambsch v. Dep’t of Treasury, 796 F.2d
430, 436 (Fed. Cir. 1986). Therefore, we will not reweigh
the evidence; we accept the Board’s finding that Ebron
knew St. Regis was not accredited in 2005.
The Board’s decision to uphold the charge of lack of
candor is supported by substantial evidence. The Board
concluded that despite knowing that his St. Regis diploma
did not meet the qualifications necessary for the jobs,
Ebron repeatedly included it in his applications and
represented that the information was accurate. 1 To
establish lack of candor, the Board need not prove there
was intent to deceive but only that a person failed “to
disclose something that, in the circumstances, should
have been disclosed in order to make the given statement
accurate and complete.” Ludlum v. Dep’t of Justice, 278
F.3d 1280, 1284 (Fed. Cir. 2002). Given the Board’s
conclusion that Ebron knew his degree was inadequate,
1
In his 2006 application Ebron signed a statement
saying:
I certify that, to the best of my knowledge and belief, all of
the information on and attached to this application is
true, correct, complete and made in good faith. I under-
stand that false or fraudulent information on or attached
to this application may be grounds for not hiring me or for
firing me after I begin work, and may be punishable by
fine or imprisonment. I understand that any information
I give may be investigated.
EBRON v. DHS 6
and given the requirement for the jobs is a four year
degree from an accredited institution, there is substantial
evidence to uphold the charge of lack of candor.
Similarly, the Board’s decision to uphold the charge of
failure to provide honest and complete information is
supported by substantial evidence. Such a charge “may
be sustained only if the agency proves by preponderant
evidence that the employee knowingly made false state-
ments with the intention of deceiving or defrauding the
agency.” Redschlag v. Dep’t of the Army, 89 M.S.P.R. 589,
607 (2001). “[A]n incorrect statement coupled with the
lack of any credible explanation or contrary action by an
employee has been held to constitute circumstantial
evidence of intention to deceive.” Stein v. U.S. Postal
Service, 57 M.S.P.R. 434, 439 (1993). Ebron wrote in a
2010 memo that he was unaware that St. Regis was not
accredited until after being notified by the FLETC. The
Agency found that this representation was misleading
because it conflicted with other statements Ebron made,
including in his application to the FLETC where he stated
that this degree was not from an accredited college or
university. The Board held that Ebron’s “conduct demon-
strates he mislead the [A]gency about such things as St.
Regis’ location and how he determined there were prob-
lems with St. Regis’ accreditation . . . .” Ebron, 2011
M.S.P.B. LEXIS 2023, at *25. The Board’s decision is
supported by substantial evidence.
II.
Ebron contends that “[t]he [A]gency failed to demon-
strate that it considered all relevant factors and exercised
its discretion within tolerable limits of reasonableness,” in
determining that removal was proper. For the most part,
penalty “for employee misconduct is left to the agency’s
discretion”; therefore, this court’s review is “highly defer-
ential.” Webster v. Dep’t of Army, 911 F.2d 679, 685 (Fed.
Cir. 1990). “While . . . the penalty must be reasonable in
light of the sustained charges, . . . [reasonable in this
7 EBRON v. DHS
context means] the agency’s choice of penalty not be
grossly disproportionate to the offense.” Id. at 686 (cita-
tions omitted).
Ebron has offered no argument why the penalty is
“grossly disproportionate to the offense.” The Agency
considered “the nature and seriousness of the misconduct
and its relation to the appellant’s duties, position and
responsibilities; whether the offense was intentional, for
personal gain and repeated.” Ebron, 2011 M.S.P.B. LEXIS
2023, at *32; see Douglas v. Veterans Admin., 5 M.S.P.R.
280, 305-06 (1981). 2 The Agency concluded that Ebron
“misrepresented his credentials even after he knew that
his degree was not from an accredited institution . . . and
his lack of a bachelor’s degree renders him ineligible to
hold a warrant and he is therefore unable to perform the
duties of his position.” Ebron, 2011 M.S.P.B. LEXIS 2023,
at *32. Furthermore, the Agency considered the negative
impact the misconduct had on the agency’s reputation and
deemed Ebron had no potential for rehabilitation given
his continued receipt of benefits, including promotions he
knew he was unqualified for, “while failing to provide
accurate and honest information to agency representa-
tives.” Id. at *33. Moreover, despite mitigating factors,
like having no prior disciplinary history, the Agency held
that the seriousness of the misconduct warranted re-
moval. Id. The Board determination was reasonable and
supported by substantial evidence.
III.
Ebron argues that the Agency erred in disciplining
him because it “failed to demonstrate that [his] removal
supports the efficiency of service.” Ebron contends that
because he did a “successful job” and was “a valuable
2
The factors listed in Douglas are not exhaustive,
and the agency is only required to consider those that are
relevant. Bryant v. Nat’l Sci. Found., 105 F.3d 1414, 1418
(Fed. Cir. 1997).
EBRON v. DHS 8
asset and service to the Agency” the agency “failed to
establish the requisite nexus between Ebron’s misconduct
and the efficiency of service.”
An agency may discipline an employee “only for such
cause as will promote the efficiency of the service,” 5
U.S.C. § 7513(a), after demonstrating a “nexus” between
the employee’s misconduct and “an adverse effect upon
the agency’s functioning,” Mings v. Dep’t of Justice, 813
F.2d 384, 389-90 (Fed. Cir. 1987). We “apply a deferential
review to determinations by the [B]oard as to whether
such a nexus has been shown.” Brown v. Dep’t of Navy,
229 F.3d 1356, 1358 (Fed. Cir. 2000).
The Agency concluded that:
As early as January 2006, you knew your degree
was not accredited; however you continued your
employment with this Federal agency. During the
fact finding process, you provided conflicting
statements and inaccurate statements which
demonstrate a lack of candor. Our confidence in
your ability to perform your duties in an honest
and ethical manner has been severely compro-
mised. Agencies need the means to remove em-
ployees who have misrepresented their
qualifications for employment. The public is not
well-served by having federal employees who have
obtained their credentials from diploma mills,
continue in jobs for which they are not qualified.
The Board stated that removal
promotes efficiency of the service when the
grounds for the action relate to . . . employee’s
ability to accomplish his duties satisfactorily. . . .
Moreover an agency has a right to expect its
workers to be honest, trustworthy, and candid.
The appellant’s lack of candor strikes at the very
heart of the employer-employee relationship.
9 EBRON v. DHS
Ebron, 2011 M.S.P.B. LEXIS 2023, at *30-31. Because
the Agency adequately showed Ebron’s misconduct af-
fected the trust and confidence the Agency could place in
his job performance, Doe v. Dep’t of Justice, 103 M.S.P.R.
135, 138 (2006), the Board’s decision was reasonable and
supported by substantial evidence.
CONCLUSION
Holders of public office are the servants of the people,
and as such are held to high standards of honesty and
candor. Ebron may have rationalized his conduct in his
own mind, but there is substantial evidence that he knew
in 2005 that his “degree” was from a diploma mill. His
failure to timely reveal that information was dishonest.
The Agency had good cause to fire him. AFFIRM.