Shawn Edmonds, Sr. v. Department of Veterans Affairs ( 2015 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    SHAWN EDMONDS, SR.,                             DOCKET NUMBER
    Appellant,                           PH-0752-15-0092-I-1
    v.
    DEPARTMENT OF VETERANS                          DATE: July 14, 2015
    AFFAIRS,
    Agency.
    THIS ORDER IS NONPRECEDENTIAL 1
    Shawn Edmonds, Sr., Willow Grove, Pennsylvania, pro se.
    Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    REMAND ORDER
    ¶1         The agency has filed a petition for review of the initial decision, which
    mitigated the appellant’s removal to a 14-day suspension. 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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 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. See Title 5
    of the Code of Federal Regulations, section 1201.115 (
    5 C.F.R. § 1201.115
    ). For
    the reasons discussed below, we GRANT the agency’s petition for review and
    REMAND the case to the regional office for further adjudication in accordance
    with this Order.
    DISCUSSION OF ARGUMENTS ON REVIEW
    ¶2         The agency removed the appellant, a Veterans Claims Examiner, on three
    charges of misconduct:      threatening bodily injury to management personnel;
    failing to protect personally identifiable information; and redirecting veterans’
    benefits to other than the intended claimant(s) and improperly altering official
    government documents. Initial Appeal File (IAF), Tab 5 at 6-10. 2 The appellant
    timely filed a Board appeal, alleging that his removal was taken because “they
    [management] wanted to get rid of me because I am a disabled veteran (100%)
    and black” and “they (management) don’t like black men trying to get ahead.”
    IAF, Tab 1 at 2. When he first filed his appeal, the appellant neither asked for a
    hearing nor requested one within the timeframe set by the administrative judge in
    the acknowledgment order. IAF, Tab 6.
    ¶3         In response to the administrative judge’s close of record order, however, the
    appellant did request a hearing, and the administrative judge issued an order
    giving the appellant an opportunity to demonstrate good cause for his belated
    hearing request. IAF, Tabs 7-8. The appellant did not respond to this order.
    2
    The citations to Tab 5 are to the page numbers generated upon the electronic filing of
    the agency file.
    3
    IAF, Tab 9. After setting a new close of record date, the administrative judge
    issued an initial decision based on the written record and only sustained the
    agency’s charge that the appellant redirected veterans’ benefits to other than the
    intended claimants and improperly altered government documents. IAF, Tab 10,
    Initial Decision (ID) at 3-9.       The administrative judge further denied the
    appellant’s affirmative defense of race discrimination, and he mitigated the
    appellant’s removal to a 14-day suspension. ID at 9-10, 12.
    ¶4         The agency has filed a petition for review arguing that the administrative
    judge did not consider all of the relevant information in mitigating the appellant’s
    removal. Petition for Review (PFR) File, Tab 1 at 5-7. The agency also argues
    that the administrative judge employed flawed reasoning in not sustaining the
    appellant’s alleged failure to protect personally identifiable information.          
    Id. at 8-9
    . In his initial decision, the administrative judge found that the record was
    devoid of evidence showing that the appellant emailed files containing personally
    identifiable information to nonagency email accounts, as the agency had alleged.
    ID at 7; IAF, Tab 5 at 6. The administrative judge further explained that although
    the agency offered to provide this evidence to him in camera upon his request,
    this offer did not comport with the Board’s procedures involving the filing of
    sensitive or confidential information, and that the absence of this evidence from
    the record was fatal to the agency’s charge that the appellant failed to protect
    personally identifiable information. ID at 7-8 & n.*. The appellant has filed a
    response in opposition to the petition for review. PFR File, Tab 4.
    ¶5         As explained below, we find that this appeal must be remanded to the
    administrative judge for further consideration of two of the agency’s charges of
    misconduct and the appellant’s disparate treatment affirmative defenses. 3          We
    3
    We see no reason to differ with the administrative judge’s finding that the agency
    failed to prove its charge that the appellant threatened bodily injury to management
    personnel. ID at 4-7. Because we are remanding the appeal for further adjudication, we
    do not address the agency’s challenge to the administrative judge’s decision to mitigate
    the penalty. PFR File, Tab 1 at 5-7.
    4
    note at the outset, however, that we disagree with the agency’s argument on
    review that the administrative judge erred in not conducting an in camera review
    of certain information.   In camera review is a process generally used during
    discovery when a party seeks to avoid the disclosure of documents on the basis of
    privilege. See U.S. v. Zolin, 
    491 U.S. 554
    , 568-69 (1989). Under this process,
    the party asserting the privilege objects to the document request and supplies the
    documents to the court for inspection in order for it to determine whether they
    should be turned over. 
    Id.
     Here, however, the agency did not assert that either
    the withheld documents or information are privileged; rather, the agency asserted
    that the information should not be made public as part of its filing in this case.
    See IAF, Tab 5 at 3.       As the administrative judge explained, the Board’s
    procedures provide for the submission of documents under seal or in redacted
    format. ID at 7 n.*; see Social Security Administration v. Doyle, 
    45 M.S.P.R. 258
    , 261-62 (1990); see also U.S. Merit Systems Protection Board Judges’
    Handbook, Chapter 17 (Oct. 2007). We thus disagree with the agency that certain
    information should have been presented to the administrative judge for in camera
    review.
    ¶6        Although we find no merit to the agency’s argument that the administrative
    judge should have conducted an in camera review of the evidence, we find that
    the record contains other evidence which the administrative judge should have
    considered in determining if the agency proved its charge that the appellant failed
    to protect personally identifiable information. Specifically, in response to the
    agency’s notice of proposed removal, the appellant submitted a written reply
    acknowledging that he sent “a copy of the email . . . to my home e-mail because
    of time constraints” and that he usually “scrub[s] any [personally identifiable
    information] from any e-mails.      However, in this instance, I wasn’t really
    thinking about the [personally identifiable information] aspect of this e-mail. It
    was an honest oversight mistake.” IAF, Tab 5 at 51. The Board has found that an
    appellant’s admission of a charge of misconduct can suffice as proof of the
    5
    charge without additional proof from the agency. See Cole v. Department of the
    Air Force, 
    120 M.S.P.R. 640
    , ¶ 9 (2014). Accordingly, upon remand, we leave it
    to the administrative judge to determine whether the appellant’s statements
    constitute sufficient proof of the agency’s charge, and if so, he should consider
    the appellant’s admissions in evaluating the reasonableness of the agency’s
    penalty. See, e.g., Lazenby v. Department of the Air Force, 
    66 M.S.P.R. 514
    , 521
    (1995) (an admission of wrongdoing can demonstrate strong rehabilitative
    potential).   We thus GRANT the agency’s petition for review, insofar as it
    challenges the administrative judge’s decision not to sustain the second charge.
    ¶7         Upon review of the initial decision, we also find that the administrative
    judge should further consider on remand whether the agency proved its third
    charge that the appellant redirected veterans’ benefits to other than intended
    claimant(s) and improperly altered official government documents.            While the
    administrative judge found preponderant evidence in the record establishing that
    the agency proved this charge, he did not specifically address the second
    component of the agency’s charge, viz., whether the appellant improperly altered
    official government documents. See ID at 8-9. Although the agency’s charge is
    based on a single event, the agency charged the appellant with redirecting
    veterans’ benefits and improperly altering official government documents, and we
    find that in order to prove this charge, the agency must prove both aspects of this
    charge as labeled. 4 See Acox v. U.S. Postal Service, 
    76 M.S.P.R. 111
    , 113-14
    (1997). An initial decision must identify and resolve all material issues of fact,
    4
    Toward the beginning of his initial decision, the administrative judge explained that
    “where, as here, a charge is based on separate acts of misconduct that are not dependent
    on each other and do not comprise a single inseparable event, each of the aspects may
    stand or fall individually.” ID at 4. We are uncertain if the administrative judge’s
    observation applies to each of the agency’s charges, or solely to its third charge. We
    disagree with the administrative judge insofar as this observation applies to the third
    charge, which we find requires the agency to prove both that the appellant redirected
    veterans benefits and that he altered official government documents. See Otero v. U.S.
    Postal Service, 
    73 M.S.P.R. 198
    , 202-03 (1997) (an agency must prove its charge as
    labeled); see also IAF, Tab 5 at 3, 6-7.
    6
    and must address all material legal issues in a manner that reveals the
    administrative judge’s conclusions of law, legal reasoning, and the authorities on
    which     that      reasoning    rests.         Spithaler    v.   Office    of   Personnel
    Management, 
    1 M.S.P.R. 587
    , 589 (1980). Absent a discussion of whether the
    agency proved by preponderant evidence that the appellant improperly altered
    official government documents, we find that additional consideration of this
    charge is warranted on remand.
    ¶8          Finally, on remand, we find that the administrative judge also must provide
    the appellant notice of his burden of proof on his affirmative defenses of race,
    sex,    and      disability   discrimination.       See     Qatsha   v.    Department   of
    Defense, 
    86 M.S.P.R. 121
    , ¶ 8 (2000). As noted above, the appellant alleged in
    his initial appeal that his removal was motivated by race, sex, and disability
    discrimination.       IAF, Tab 1 at 2.          The record reflects, however, that the
    administrative judge did not apprise the appellant of the applicable burdens of
    proof on these claims prior to issuing the initial decision, and that he only
    addressed the appellant’s defense of race-based disparate treatment in his initial
    decision. ID at 9-10; IAF, Tabs 6, 9. Under these circumstances, we find that the
    appellant is entitled to notice of the standards of proof for his affirmative
    defenses of race-, sex-, and disability-based disparate treatment, and we find that
    remand of the appeal for further adjudication is warranted. 5 Id.; see Sarratt v.
    U.S. Postal Service, 
    90 M.S.P.R. 405
    , ¶ 12 (2001) (Board law requires the
    administrative judge to give the appellant notice of his burden of proof and the
    elements of his affirmative defense).
    5
    We recognize that these issues may have been overlooked due to the fact that the
    appellant did not timely request a hearing. Because we find no reason to differ with the
    administrative judge’s conclusion that the appellant did not timely request a hearing,
    the appellant is not entitled to another opportunity to request a hearing on remand. IAF,
    Tab 9.
    7
    ORDER
    For the reasons discussed above, we REMAND this case to the regional
    office for further adjudication in accordance with this Remand Order.        After
    apprising the appellant of the elements of his affirmative defenses and giving him
    an additional opportunity to submit evidence on these claims, the administrative
    judge may adjudicate the appeal on the written record and issue a new initial
    decision addressing the two charges discussed above; the appellant’s race, sex,
    and disability discrimination affirmative defenses; and whether the appellant’s
    removal should be sustained or whether a lesser penalty should be imposed.
    FOR THE BOARD:                           ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.
    

Document Info

Filed Date: 7/14/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021