Kathleen Hansen v. Department of the Army ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHLEEN HANSEN, DOCKET NUMBER
Appellant, PH-0752-14-0008-I-2
v.
DEPARTMENT OF THE ARMY, DATE: March 13, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Kathleen Hansen, Whiting, New Jersey, pro se.
Kurt W. Perhach, Picatinny Arsenal, New Jersey, 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
affirmed her removal. 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 interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the judge’s rulings
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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). After fully considering the filings in this
appeal, and based on the following points and authorities, 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.
BACKGROUND
¶2 The agency removed the appellant from her Contract Specialist position.
Initial Appeal File (IAF), Tab 3, Subtab 4b. She timely appealed the removal,
IAF, Tab 1, and following a dismissal without prejudice, IAF, Tab 8, timely
refiled the appeal, Refiled Appeal File (RAF), Tab 1. After a hearing, the
administrative judge affirmed the removal. RAF, Tab 14, Initial Decision (ID).
¶3 The appellant has filed a timely petition for review in which she asserts,
inter alia, that: the deciding official did not consider her written response; her
prior discipline was improperly considered; the administrative judge improperly
excluded some of her proposed witnesses; the charges against her were
improperly reclassified and improperly sustained; and the administrative judge
was biased. Petition for Review (PFR) File, Tab 1 at 5-12. The appellant also
asserts that the administrative judge erred in finding that she failed to establish
her affirmative defense of equal employment opportunity (EEO) retaliation in
particular because he incorrectly found that the deciding official was unaware that
she had filed an EEO complaint. Id. at 10-11. Additionally, the appellant
reasserts that her removal was a violation of her First Amendment rights and
argues, for the first time on review, that the constant “rehashing” of her past
3
disciplinary record is a violation of the Fifth Amendment in that it constitutes
double jeopardy. 2 Id. at 12. The agency responds in opposition to the petition.
PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 When taking an adverse action against an employee, an agency must
establish that: (1) the charged conduct occurred; (2) a nexus exists between the
conduct and the efficiency of the service; and (3) the particular penalty imposed
is reasonable. Crawford-Graham v. Department of Veterans Affairs, 99 M.S.P.R.
389, ¶ 16 (2005) (citing 5 U.S.C. §§ 7701(c)(1)(B), 7513(a)). For a charge to be
sustained, an agency must prove all of the elements of the charge by a
preponderance of the evidence. 3 Crawford-Graham, 99 M.S.P.R. 389, ¶ 17
(citing Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.
1990)).
The administrative judge properly sustained the charges of disrespectful conduct
towards a supervisor and insubordination.
¶5 The appellant was removed based upon six specifications of disrespectful
conduct towards a supervisor and one specification of insubordination. IAF, Tab
3, Subtab 4b. The administrative judge found, based upon the record as a whole,
including the hearing testimony and the content of the emails supporting the
specifications, that the agency proved all six specifications of disrespectful
conduct towards a supervisor. ID at 5-6; see RAF, Tab 9, Exhibits 1-7. With
regard to a charge of disrespectful conduct, the Board considers the context in
which comments are made to determine whether misconduct occurred. Daigle v.
2
Although the appellant has submitted evidence on review, PFR File, Tab 2, we have
not considered it because she has not shown that this evidence is new and material.
5 C.F.R. § 1201.115.
3
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, wou ld accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
4
Department of Veterans Affairs, 84 M.S.P.R. 625, ¶ 6 (1999). We have
considered the content and context of the emails at issue in the specifications, as
well as the evidence and testimony concerning the appellant’s refusal to attend a
meeting as directed by the proposing official and her second-line supervisor, the
appellant’s communications during meetings, and the appellant’s interactions
with both the proposing official and her second-line supervisor. See IAF, Tab 3,
Subtab 4c; RAF, Tab 9; Hearing Compact Disc (HCD). Based upon this review,
we find no reason to disturb the administrative judge’s finding sustaining all six
specifications of disrespectful conduct.
¶6 The administrative judge also sustained the insubordination charge, finding
that the appellant did not dispute the factual assertions in the specification, that
the appellant’s second-line supervisor issued her a valid order to listen and
remain in a meeting, and that the appellant willfully refused to obey the order
when she abruptly left the meeting. ID at 6-7. Insubordination is the willful and
intentional refusal to obey an authorized order of a superior officer which the
officer is entitled to have obeyed. Parbs v. U.S. Postal Service, 107 M.S.P.R.
559, ¶ 13 (2007), aff’d, 301 F. App’x 923 (Fed. Cir. 2008). The record reflects
that the appellant’s second-line supervisor was entitled to order and did order the
appellant to remain in the meeting, but she willfully and intentionally left the
meeting. See IAF, Tab 3, Subtab 4c; HCD. Therefore, we see no reason to
disturb the administrative judge’s findings sustaining this charge. 4
The appellant has not established her affirmative defense of EEO retaliation.
¶7 On review, the appellant argues that the administrative judge erred in
finding that she did not establish her affirmative defense of EEO retaliation, in
4
The appellant challenges the administrative judge’s finding sustaining the charges
against her, stating that there never was any insubordination or disrespectful conduct.
PFR File, Tab 1 at 6. We find that the appellant’s arguments provide no basis for us to
disturb the initial decision because the appellant’s mere disagreement with the
administrative judge’s conclusions does not provide a basis for Board review. See
Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133–34 (1980).
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particular because the administrative judge incorrectly found that the deciding
official did not have knowledge of her EEO activity prior to removing her. PFR
File, Tab 1 at 10-11. The appellant points to an email that she sent prior to her
removal to several individuals, including the deciding official, in which she stated
that she had filed an EEO complaint. Id.; see IAF, Tab 3, Subtab 4c.
¶8 Where, as here, the record is complete on the issue of retaliation, the
Board’s inquiry proceeds to the ultimate question of whether, upon weighing the
evidence presented by both parties, the appellant has met her overall burden of
proving retaliation by preponderant evidence. Dwyer v. Department of Veterans
Affairs, 107 M.S.P.R. 632, ¶ 7 (2008). In his initial decision, the administrative
judge considered the deciding official’s testimony that she only became aware of
the appellant’s EEO complaint after she rendered the removal decision. ID at
8-9. However, the administrative judge also found that the appellant failed to
demonstrate a genuine nexus between her prior EEO activity and her removal,
that the agency had a legitimate nondiscriminatory and nonretaliatory reason for
removing the appellant in that she had repeated charges of misconduct, and that
the appellant presented no evidence that the agency’s stated reason was
pretextual. ID at 9-10. Based upon our review of the record as a whole, we find
that, regardless of whether the deciding official knew about the appellant’s EEO
activity prior to removing her, the appellant failed to establish her affirmative
defense of EEO retaliation. See Keller v. Department of the Army, 113 M.S.P.R.
557, ¶ 12 (2010) (even assuming that the appellant engaged in protected EEO
activity of which the proposing official was aware and that retaliation could have
been the motive for the removal action, the appellant failed to establish a genuine
nexus between the protected activity and the removal).
The administrative judge properly determined that the appellant did not prove her
affirmative defense of harmful procedural error.
¶9 On review, the appellant argues that the agency committed harmful
procedural error when the deciding official considered her prior discipline and
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that the administrative judge erred in excluding witnesses who would have
testified as to issues concerning her prior discipline. PFR File, Tab 1 at 5-6. She
also asserts that the discipline that was the subject of pending EEO proceedings
should not have been considered. Id. at 11-12. An agency may consider prior
discipline as an aggravating factor in a current misconduct case if the employee
was informed of the prior action in writing, the action was a matter of record, and
the employee was permitted to dispute the charges before a higher level of
authority other than the one that imposed the discipline. Bolling v. Department of
the Air Force, 9 M.S.P.R. 335, 339-40 (1981). Here, the appellant was informed
of the prior actions in proposed decisions, she was given the opportunity to
dispute the charges, and the actions were imposed by a deciding official who was
different from the proposing official. IAF, Tab 3, Subtabs 4e-4i. The appellant
was informed in the proposal to remove her that the agency would be relying on
the prior discipline in imposing the penalty. IAF, Tab 3, Subtab 4d. We
therefore find that the appellant has not shown error by the agency as to its
consideration of the prior discipline and that the administrative judge properly
excluded witnesses concerning the prior discipline because the discipline was not
at issue in the current case. Additionally, we find no error in the consideration of
a disciplinary action that was the subject of an EEO complaint because our
reviewing court has held that a prior disciplinary action that is being challenged
through the EEO process may still be considered in assessing a proper penalty.
Blank v. Department of the Army, 247 F.3d 1225, 1230 (Fed. Cir. 2001).
The administrative judge properly determined that the appellant’s removal did not
violate the First Amendment.
¶10 We also find unpersuasive the appellant’s argument that her removal
violated the First Amendment. PFR File, Tab 1 at 12. In order to determine
whether speech is protected by the First Amendment, the Board must determine:
(1) whether the speech addressed a matter of public concern and, if so,
(2) whether the agency’s interest in promoting the efficiency of the service
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outweighs the employee’s interest as a citizen. Smith v. Department of
Transportation, 106 M.S.P.R. 59, ¶ 46 (2007). Here, we find that the
administrative judge correctly determined that the appellant was not addressing a
matter of public concern and that her removal therefore did not violate the First
Amendment. ID at 11-12.
The appellant’s remaining affirmative defenses do not provide a basis for
disturbing the initial decision.
¶11 The appellant asserts for the first time on review that her removal violates
the constitutional prohibition against double jeopardy and that she did not have a
meaningful opportunity to respond to her proposed removal. PFR File, Tab 1 at
11-12. The Board will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Banks v. Department
of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has made no such
showing here. Even if we did consider these arguments, however, we find that
they are not supported by the record. In particular, the appellant did indeed
respond to the proposed removal and the removal decision specifically addressed
her response. IAF, Tab 3, Subtabs 4b-4c. We therefore find that she had a
meaningful opportunity to respond to the proposal letter. We also find that the
appellant’s argument regarding double jeopardy is without merit because there is
no evidence that she was disciplined twice for the same misconduct. Cooper v.
Department of Veterans Affairs, 117 M.S.P.R. 611, ¶ 5 (2012) (although the
constitutional prohibition against double jeopardy applies only to defendants in
criminal cases, and not to petitioners in administrative proceedings before the
Board, an agency cannot impose a disciplinary or adverse action more than once
for the same misconduct), aff’d, 515 F. App’x 897 (Fed. Cir. 2013); see Frederick
v. Department of Homeland Security, 2015 MSPB 11, ¶ 6 (an agency cannot rely
upon employee misconduct that formed the basis of a prior disciplinary or adverse
action when imposing a subsequent disciplinary or adverse action).
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The administrative judge correctly determined that there is a nexus between the
charged misconduct and the efficiency of the service.
¶12 Next, we find that the administrative judge properly found a nexus between
the appellant’s charged misconduct and the efficiency of the service. ID at 12.
The Board has held that disrespect toward supervisors seriously undermines the
capacity of management to maintain employee efficiency and discipline. Fonville
v. Department of Health & Human Services, 30 M.S.P.R. 351, 354-55 (1986).
Thus, we agree with the administrative judge that there is a nexus between both
the appellant’s disrespectful conduct towards a supervisor and her
insubordination and the efficiency of the service. See Beaudoin v. Department of
Veterans Affairs, 99 M.S.P.R. 489, ¶¶ 10, 17, aff’d as modified on
recons., 100 M.S.P.R. 507 (2005), aff’d, 202 F. App’x 460 (Fed. Cir. 2006).
The administrative judge properly determined that the penalty was reasonable.
¶13 Where, as here, all of the agency’s charges have been sustained, the Board
will review the agency-imposed penalty only to determine if the agency
considered all of the relevant Douglas factors and exercised management
discretion within the tolerable limits of reasonableness. 5 Woebcke v. Department
of Homeland Security, 114 M.S.P.R. 100, ¶ 7 (2010). The deciding official
credibly testified that she considered all of the Douglas factors but that she
highlighted the most important factors in her decision. HCD. She testified as to
the most significant Douglas factors, including that: the appellant’s offense of
“storming out of a meeting” was very serious; the offenses were repeated; the
offenses were intentional; the appellant demonstrated no regret or remorse; there
were no mitigating circumstances; and the appellant did not have rehabilitative
potential as there had been previous discipline. HCD; see IAF, Tab 3, Subtab 4b.
The deciding official also testified that she considered the agency’s table of
5
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of twelve factors that are relevant in assessing the
penalty to be imposed for an act of misconduct.
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penalties and the appellant’s past service and performance. HCD; see IAF, Tab 3,
Subtab 4b. Considering the record as a whole, we find that the agency considered
all of the relevant Douglas factors and exercised management discretion within
the tolerable limits of reasonableness. Therefore, we do not disturb the
administrative judge’s finding that the removal penalty was warranted in this
case.
The appellant has not shown that the administrative judge was biased.
¶14 On review, the appellant asserts that the administrative judge was biased in
favor of the agency. PFR File, Tab 1 at 7. The appellant has not set forth any
evidence or argument to overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. Fox v. Department of the
Army, 120 M.S.P.R. 529, ¶ 46 (2014). We therefore find that the appellant has
not shown bias. We also have considered the appellant’s remaining arguments.
However, we find that they do not present a basis for disturbing the
administrative judge’s initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision.
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 United States 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
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If you submit your request via commercial delivery or by a method
requiring 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
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 United States
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 have 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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.