Clifford W. Jones, Sr. v. Department of Health and Human Services ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLIFFORD W. JONES, SR., DOCKET NUMBER
Appellant, CH-0432-13-1527-B-1
v.
DEPARTMENT OF HEALTH AND DATE: December 8, 2016
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Clifford W. Jones, Sr., Cass Lake, Minnesota, pro se.
Craig Herkal, Esquire, and Jennifer M. Cassell, Esquire, Chicago, Illinois,
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 for unacceptable performance. 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
1
A nonprecedential order is one that the Board has determined does not a dd
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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the 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 Effective May 20, 2011, the agency removed the appellant, a GS-11
Supervisory Financial Management Specialist at the agency’s Indian Health
Service (IHS) Cass Lake Hospital, for unacceptable performance in three critical
elements of his position. Jones v. Department of Health & Human Services,
MSPB Docket No. CH-0432-13-1527-I-1, Initial Appeal File (IAF), Tab 6,
Subtab 4a. The appellant sought corrective action with the Office of Special
Counsel (OSC) regarding the removal and subsequently filed an individual right
of action (IRA) appeal. The administrative judge dismissed the appeal for lack of
jurisdiction, finding that the appellant failed to nonfrivolously allege that he made
a protected disclosure when he revealed to the Office of Inspector General and to
OSC alleged irregularities in the agency’s hiring/attempting to hire another
employee who, according to the appellant, should have been under his
supervision, and in the agency’s setting up a second accounting section in an
auxiliary building. Jones v. Department of Health & Human Services, MSPB
Docket No. CH-1221-12-0125-W-2, Initial Decision at 2, 4-6 (Oct. 12, 2012). On
the appellant’s petition for review of that decision, the Board agreed with the
administrative judge’s findings and the disposition of the appeal but found that
the appellant was entitled to review of his removal under 5 U.S.C. chapter 43 , and
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it forwarded the matter for docketing as a removal appeal. Jones v. Department
of Health & Human Services, MSPB Docket No. CH-1221-12-0125-W-2, Final
Order at 7-8 (July 25, 2013). That appeal was initially dismissed without
prejudice, pending the Board’s decision on a related compliance appeal. Jones v.
Department of Health & Human Services, MSPB Docket No. CH-0432-13-1527-I-
1, Initial Decision at 2-3 (Nov. 20, 2013). The administrative judge subsequently
dismissed the refiled removal appeal as untimely, but the Board reversed that
finding and remanded the case to the regional office for adjudication on the
merits of the appellant’s removal. Jones v. Department of Health & Human
Services, MSPB Docket No. CH-0432-13-1527-I-2, Remand Order at ¶¶ 7-10
(Aug. 7, 2015).
¶3 During the remand proceeding, the appellant reiterated generally his claim
that, in connection with his removal, the agency retaliated against him because of
his whistleblowing activities, and he also alleged generally that the agency had
violated his due process rights. In addition, he argued that the agency denied him
use of its computer system after issuance of the notice of proposed removal.
Remand File (RF), Tab 9. The appellant subsequently added claims that the
agency discriminated against him on the bases of sex and age. RF, Tab 22.
During adjudication, the administrative judge determined that the appellant was
collaterally estopped from relitigating his claim of retaliation for whistleblowing
because he previously had litigated the same issue in his earlier IRA appeal. RF,
Tab 25.
¶4 After convening the requested hearing, RF, Tab 26, the administrative judge
issued an initial decision in which she found that the agency showed by
substantial evidence that the Office of Personnel Management approved its
performance appraisal system, RF, Tab 32, Remand Initial Decision (RID) at 8-9;
that it communicated the performance standards and critical elements of the
appellant’s position to him, RID at 9-12; that his performance standards were
valid under 5 U.S.C. § 4302(b)(1), RID at 12; and that the agency provided the
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appellant with a reasonable opportunity to demonstrate acceptable performance,
RID at 13-21. The administrative judge further found that the agency proved by
substantial evidence that the appellant’s performance in all three critical elements
was unacceptable—critical element #1, ensuring awareness, training, compliance,
and discipline in supervisees, RID at 21-24; critical element #2, directing the
overall financial objectives and policies for the finances of Cass Lake Hospital,
RID at 24-31, and critical element #3, implementing the “M” system for
maintaining inventory of medical and office supplies, and providing certain
reports within specified time frames, RID at 31-34. As indicated in her earlier
order, the administrative judge found that the appellant’s whistleblower
retaliation claim was barred by collateral estoppel. RID at 34. The
administrative judge found wholly unsupported the appellant’s allegation that the
agency violated his due process rights. RID at 34-36. The administrative judge
considered as an affirmative defense of harmful procedural error the appellant’s
claim that he was denied computer access during the time following his receipt of
the proposal notice and prior to his removal. Weighing the appellant’s credibility
against the record evidence on this point, the administrative judge found that the
agency did not commit procedural error and that, in any event, the appellant
offered no evidence or argument that the outcome of the case would have been
different if he had access to the agency’s Unified Financial Management System
at the time in question. RID at 36-37. The administrative judge found that the
appellant offered no evidence to support his allegations of sex or age
discrimination, RID at 37-40. Finally, finding that the Board lacks authority to
mitigate an agency-imposed penalty for an action taken under 5 U.S.C.
chapter 43, the administrative judge sustained the appellant’s removal. RID
at 40.
¶5 The appellant filed a petition for review, Remand Petition for Review (PFR)
File, Tab 1, to which the agency has responded, RPFR File, Tab 3.
5
¶6 With one exception, the appellant does not challenge on review the
administrative judge’s findings that the agency proved by substantial evidence
that the appellant’s performance in the three cited critical elements was
unacceptable. That exception involves the part of critical element #3 wherein the
agency claimed that the appellant failed to implement the “M” system for
inventory. As to this matter, the appellant’s performance improvement plan (PIP)
indicated that the system had not yet been implemented, except by other staff
because of the appellant’s failure to implement it, and that, to improve his
performance, he must implement the system and provide a usage report to the
Executive Team on a quarterly basis. IAF, Tab 6, Subtab 4oo at 5. In the notice
of proposed removal, the agency stated that the system was being implemented by
staff from another office because the appellant did not implement it with his own
staff or the contractor hired to get the system operating. Id., Subtab 4n. And, in
the decision letter, the agency stated that the departure of the contractor was
irrelevant to the PIP requirement. Id., Subtab 4b. In finding this part of critical
element #3 sustained, the administrative judge relied upon the testimony of the
appellant’s second-line supervisor who was also the deciding official in this case
to the effect that getting the system to function properly was critical but that the
appellant was never able to implement it and that he also did not provide the
appropriate quarterly reports to headquarters. RID at 32; Hearing Transcript (HT)
at 142-44 (testimony of the deciding official). The administrative judge
considered the appellant’s claim in his pleadings 2 that he could not implement the
system because he needed another employee to handle the data entry, but she
found that, while the appellant was required to report on what the employees he
supervised were doing, he never provided such a report. RID at 13.
¶7 To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question ,
2
The appellant elected not to testify at the hearing. HT at 162.
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state which version he believes, and explain in detail why he 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) (explaining that, in assessing credibility, an administrative judge
must consider 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 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, having
“observed the demeanor of the agency witnesses,” the administrative judge found
their testimony to be credible. RID at 21. She further found that the appellant’s
unsworn statements lacked credibility and that they were inconsistent with the
unrebutted evidence presented by the agency. RID at 33. Other than claiming
that his second-line supervisor committed perjury during her testimony, RPFR
File, Tab 1 at 8, and that the other agency witnesses did as well, id. at 9, the
appellant has failed to provide sufficiently sound reasons for overturning the
administrative judge’s credibility determinations, which were based on her
observations of the witnesses’ demeanor. Therefore, we find it appropriate to
defer to them, see Haebe, 288 F.3d at 1302, and reject as unsupported the
appellant’s challenge to the administrative judge’s finding sustained this part of
critical element #3.
¶8 As noted, the appellant does not challenge on review the administrative
judge’s findings sustaining the appellant’s unacceptable performance under the
remaining part of critical element #3, critical element #1, or critical element #2.
7
Based on our review, we otherwise discern no reason to reweigh the evidence or
substitute our assessment of the record evidence for that of the administrative
judge. See Haebe, 288 F.3d at 1302; Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 105‑06 (1997) (finding no reason to disturb the findings of the administrative
judge who considered the evidence as a whole, drew appropriate references, and
made reasoned conclusions). We therefore find no error in the administrative
judge’s finding that the agency proved by substantial evidenc e that the appellant’s
performance was unacceptable in the three critical elements cited.
¶9 On review, the appellant argues that he was denied the ability to “identify”
his claims of retaliation for whistleblowing and age and sex discrimination.
RPFR File, Tab 1 at 3, 10.
¶10 We first address the appellant’s whistleblowing claim. The administrative
judge ruled during adjudication that the appellant’s affirmative defense of
retaliation for whistleblowing was barred by collateral estoppel , RF, Tab 25
at 1‑2, and she incorporated that ruling in her initial decision. RID at 34.
Collateral estoppel, or “issue preclusion,” is appropriate when: (1) an issue is
identical to that involved in the prior action; (2) the issue was actually litigated in
the prior action; (3) the determination on the issue in the prior action was
necessary to the resulting judgment; and (4) the party against who issue
preclusion is sought had a full and fair opportunity to litigate the issue in the
prior action, either as a party or as one whose interests were otherwise fully
represented in the that action. Kroeger v. U.S. Postal Service, 865 F.2d 235, 239
(Fed. Cir. 1988); Encarnado v. Office of Personnel Management, 116 M.S.P.R.
301, ¶ 13 (2011). The elements of collateral estoppel are present in this appeal.
Whether the appellant’s claim that the agency creation of a second accounting
section in an auxiliary building but not placing that section under his supervision
constituted a protected disclosure as raised in his IRA appeal is identical to the
affirmative defense that he raises in this appeal, the issue was actually litigated in
8
the prior appeal, it was the critical issue in the jurisdictional determination that
the Board lacked jurisdiction over Jones v. Department of Health & Human
Services, MSPB Docket No. CH-1221-12-0125-W-2, and the appellant, the party
precluded from relitigating the issue, had a full and fair opportunity to litigate the
issue in the prior action. We therefore find that the appellant has not shown error
in the administrative judge’s ruling that the appellant is barred by collateral
estoppel from relitigating the issue of whether his disclosure regarding the
creation of the second accounting section was protected under the Whistleblower
Protection Act. See Jenkins v. Environmental Protection Agency, 118 M.S.P.R.
161, ¶ 22 (2012).
¶11 We next address the appellant’s allegations of age and sex discrimination.
After he raised these claims below, RF, 22, the administrative judge set out the
appropriate burdens of proof for these claims, RF, Tab 25, but the appellant
submitted no documentary evidence in support of either claim. In his prehearing
submission, he stated that he would call no witnesses, RF, Tab 9, although in a
subsequent untimely submission, he requested that two agency employees be
allowed to testify, RF, Tab 17, and he then asked that another employee be
allowed to testify in place of one of the first two, RF, Tab 18. During the
prehearing conference, the agency objected to the tw o witnesses on the ground of
relevancy. Specifically, the agency argued that one of the witnesses was to
testify regarding the Budget Technician position the appellant claimed he should
have supervised, and that the other was to testify regarding the appellant’s
allegedly being denied computer access after his removal was proposed, and the
administrative judge granted the objections. RF, Tab 20. The appellant generally
noted his objection to the administrative judge’s ruling. RF, Tab 22. At the
hearing, after the agency rested, the administrative judge asked the appellant if he
intended to testify and he replied that he would not do so. HT at 162. The
administrative judge then noted that the agency had named the appellant as a
witness, but when he expressed reservations about testifying under these
9
circumstances, the administrative judge stated that she would not require him to
do so, but that she would draw “an adverse inference on anything where there are
credibility determinations that I need to make if you do not exercise this
opportunity to testify.” Id. at 163. The appellant stated that he “chose not to.”
Id. The agency noted its objection, proffering that, if required to, the appellant
would testify, inter alia, that he had no direct informat ion that he was removed
because of his age or sex. Id. at 164. Notwithstanding the administrative judge’s
repeated explanations of the significance of this matter, id. at 165-67, the
appellant still declined to testify, id. at 167.
¶12 In addressing the appellant’s claims of sex and age discrimination, the
administrative judge found that he offered no evidence to support his allegations
whereas the agency presented sworn evidence that his sex and age played no role
in the decision to remove him, HT at 155-56 (testimony of the deciding official);
HT at 43-44 (testimony of the proposing official), and that therefore, the
appellant had failed to establish his claims of sex and age discrimination in
connection with his removal. RID at 38-40. We find no support for the
appellant’s bare claim on review that he was denied the opportunity to “identify”
his claims of sex and age discrimination. We further find that the administrative
judge did not abuse her discretion in denying the two witnesses the appellant
requested as he has not shown that either would provide relevant, material, and
nonrepetitious testimony. See 5 C.F.R. § 1201.41(b)(3), (8), (10); Alaniz v. U.S.
Postal Service, 100 M.S.P.R. 105, ¶ 9 (2005). Although the administrative judge
indicated that she would draw an adverse inference from the appellant’s refusal to
testify, it is unclear whether she actually did so. Instead, she noted that the
appellant offered no evidence whatsoever to support his allegations, other than
his own assertions. Even if the administrative judge’s statement could be deemed
an adverse inference, the Board has held that it is proper for an administrative
10
judge to draw an adverse inference under such circumstances. 3 Boal v.
Department of the Army, 51 M.S.P.R. 134, 137 (1991). We find, therefore, that
the appellant has failed to show that the administrative judge erred in finding not
sustained the appellant’s allegations of sex and age discrimination. See Savage v.
Department of the Army, 122 M.S.P.R. 612, ¶¶ 41, 37 (2015).
¶13 Finally, on review, the appellant argues, as he did below, that the agency
denied him due process in connection with the newly created Budget Technician
position. RPFR File, Tab 1 at 6. Despite being advised of what due process is
required in the context of an action taken against an employee ; specifically,
notice and an opportunity to respond, RF, Tab 21, and directed to identify the
specific due process violation committed by the agency in its decision to remove
him, the appellant failed to do so, RF, Tab 22. The administrative judge
considered the appellant’s several claims but found that they were not relevant to
a due process violation claim and that, in any event, the record established that he
received written notice of the charges against him and opportunities to respond to
all the evidence relied upon by the deciding official. RID at 34-36. Beyond his
mere disagreement, the appellant has not set forth any specific due process
3
The appellant also alleges on review that the administrative judge improperly ruled his
proffered evidence inadmissible. RPFR File, Tab 1 at 6. The evidence he referenced in
his prehearing submission consisted of a Cass Lake Hospital organizational chart, a
blank position description cover sheet, instructions, generally, for how to complete such
a cover sheet, two pages from the IHS Performance Plan Reference Guide, and two
pages of “People Smart,” a document that appears to relate to orienting new IHS
employees. RF, Tab 9. The agency objected to these documents on the basis of
relevance. The administrative judge found that none of them related to the appellant’s
performance, RF, Tab 20, and she excluded them, RF, Tab 25. At the hearing, the
administrative judge explained that the exhibits were denied because they related to the
Budget Technician position that was the subject of the appellant’s previous IRA appeal,
and that such information was “irrelevant under many doctrines” and preluded by
collateral estoppel. HT at 5. The appellant has not shown error in this ruling. To the
extent he suggests on review that “each document identifies my duties and
responsibilities as the First Line Supervisor or the Age, Gender, and Compensation of
the Budget Technician . . . .” RPFR File, Tab 1 at 6, our review of the documents does
not support the appellant’s claim.
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violation or otherwise shown error in the administrative judge’s finding that he
failed to establish his claim. See Pollak v. Department of the Treasury,
99 M.S.P.R. 187, ¶ 9 (2005).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 4
You have the right to request further review of this final decision. There
are several options for further review set forth in the para graphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requirin g a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
4
The remand initial decision properly afforded the appellant notice of mixed case
appeal rights but did not afford him notice of appeal rights under the Whistleblower
Protection Enhancement Act of 2012. We have appropriately provided notice of both
types of appeal rights herein.
12
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you h ave a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
Other Claims: Judicial Review
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not wan t to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction to review this final decision. The court of
appeals must receive your petition for review within 60 days after the date of this
13
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
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 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 about
the U.S. Court of Appeals for the Federal Circuit 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. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your 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.