Joseph F. Clipse v. Department of Homeland Security ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH F. CLIPSE, DOCKET NUMBER
Appellant, AT-0752-14-0178-I-1
v.
DEPARTMENT OF HOMELAND DATE: September 30, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
E. Michael Ruberti, Esquire, Saint Simons Island, Georgia, for
the appellant.
Diane Z. Buchli, Glynco, Georgia, 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 the agency’s action removing him for failure to follow a written
directive and lack of candor. Generally, we grant petitions such as this one only
when: the initial decision contains erroneous findings of material fact; the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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. 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, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant timely filed an appeal of the agency’s action removing him
from the position of Lead Law Enforcement Specialist (Driver Instructor),
GS-1801-13, with the Department of Homeland Security, Federal Law
Enforcement Training Center (FLETC), in Glynco, Georgia, effective
November 5, 2013. Initial Appeal File (IAF), Tab 1, Tab 3, Subtab 4a. The
appellant was the lead instructor in the Driver and Marine Division
(DMD). Id. He was removed on grounds of failure to follow a written directive
and lack of candor. Id., Subtabs 4b, 4g at 1-12. These charges arose after the
agency investigated allegations that he had fraternized with three female students
and a female intern between 2007 and 2013 in violation of agency policy. 2 See
id., Subtab 4e at 4-17, Subtab 4g at 217-604. On appeal, the administrative judge
2
FLETC Directive and Manual 67-31, “Fraternization Between Center Staff and
Students,” prohibits personal relationships and certain forms of social contact between
FLETC staff members and students unless approved by an appropriate official. IAF,
Tab 3, Subtab 4g at 71-87. Fraternization is defined as “any social contact between
staff members and students on or off FLETC property that is not required to further the
training mission.” Id. at 75.
 3
sustained both charges and found that the agency properly exercised its
managerial discretion in imposing the penalty of removal. IAF, Tab 32, Initial
Decision (ID) at 1, 9-34. The administrative judge also found that the appellant
failed to prove either of his two affirmative defenses: (1) that the charges were
barred by laches; or (2) that the agency violated his right to due process because
some specifications underlying the charges were insufficiently specific. ID
at 34-36. The administrative judge affirmed the removal action. ID at 36.
The appellant did not establish that the administrative judge made erroneous
credibility determinations and findings of fact.
¶3 The appellant argues throughout the petition for review that the initial
decision contains numerous factual errors and that the administrative judge
erroneously determined that the women with whom he allegedly fraternized were
credible witnesses. Petition for Review (PFR) File, Tab 1 at 7-11, 12-17, 19-21,
25-27. The Board must give 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) . The
Board may overturn an administrative judge’s demeanor-based credibility
determinations when they are incomplete, inconsistent with the weight of the
evidence, and do not reflect the record as a whole. Faucher v. Department of the
Air Force, 96 M.S.P.R. 203, ¶ 8 (2004). To resolve credibility issues, an
administrative judge must identify the factual questions in dispute, summarize the
evidence on each disputed question, state which version she believes, and explain
in detail why she found the chosen version more credible, considering such
factors as: (1) the witness’s opportunity and capacity to observe the event or act
in question; (2) the witness’s character; (3) any prior inconsistent statement by
the witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the
witness’s version of events by other evidence or its consistency with other
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evidence; (6) the inherent improbability of the witness’s version of events; and
(7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453,
458 (1987).
¶4 The four women with whom the appellant allegedly fraternized, and whose
credibility he now challenges, are: A.N., a Special Agent with the U.S. Customs
and Immigration Enforcement (ICE), IAF, Tab 3, Subtab 4g at 3, 9, 242-43;
M.V., a Senior Special Agent with the Naval Criminal Investigative Service, id.
at 3, 225-26; Student X, a Ranger with the Bureau of Land Management, id. at 2,
222-24; and R.M., a student intern at the facility, id. at 7, 9-10, 218. The
appellant also challenges the administrative judge’s finding that witness E.M.
testified credibly. PFR File, Tab 1 at 11-12; ID at 20. E.M., an ICE Special
Agent, was A.N.’s roommate during training and corroborated her testimony. 3
IAF, Tab 3, Subtab 4g at 245; ID at 18-20.
¶5 The appellant has not shown the administrative judge’s findings of fact are
incomplete, inconsistent with the weight of the evidence, or that they fail to
reflect the record as a whole. See Faucher, 96 M.S.P.R. 203, ¶ 8. To the
contrary, the administrative judge identified the material issues of fact and law,
summarized the evidence, resolved issues of credibility using the Hillen factors,
and included her conclusions of law and legal reasoning, as well as the authorities
3
The appellant additionally challenges the administrative judge’s finding that two other
witnesses testified credibly: K.M., a Special Agent with the agency’s Office of
Professional Responsibility, and B.B., DMD Division Chief from 2011 to 2012. PFR
File, Tab 1 at 22-23; ID at 28-29. Based on their testimony, the administrative judge
concluded that a 2012 investigation regarding fraternization with student interns had
placed the appellant on notice that the agency’s fraternization policy also applied
to student interns. ID at 28-29. The appellant argues that the agency submitted no
documentary proof that he had discussed FLETC Directive 67-31 with either witness.
PFR File, Tab 1 at 22-23. Although the administrative judge credited the testimony of
K.M. and B.B., ID at 29, the record also shows that the appellant received training
regarding the directive in April 2006 before assuming his duties at FLETC. IAF, Tab 3,
Subtab 4g at 492, 630, 659-60. FLETC Directive 67-31 clearly prohibits most
social contact with student interns. Id. at 75. The record additionally shows that the
appellant acknowledged re-reading FLETC Directive 67-31 in November 2011 and
February 2013. Id. at 441, 443.
5
on which that reasoning rests in a detailed initial decision. See Spithaler v. Office
of Personnel Management, 1 M.S.P.R. 587, 589 (1980); see also Hillen,
35 M.S.P.R. at 458. The appellant, for example, asserts that A.N. is not a
credible witness because she changed her story during the investigative process
and her hearing testimony was either uncorroborated by the documentary
evidence in the record, or such evidence was fabricated to support her testimony.
PFR File, Tab 1 at 7-11, 12-17, 25-27. The administrative judge, however,
considered that A.N. only reported the appellant’s behavior when approached by
investigators from the Office of Professional Responsibility, and that she had not
independently filed any complaint against him. ID at 20. The administrative
judge found A.N.’s demeanor to be “straightforward,” even while testifying about
“admittedly embarrassing facts.” Id. The administrative judge noted that A.N.
lacked any discernable motive for fabricating allegations against the appellant,
especially given that her testimony potentially put her own law enforcement
career at risk. Id. The administrative judge further found that A.N.’s testimony
was corroborated by that of E.M., who testified that she learned of the appellant’s
affair with A.N. about 6 months after their graduation from FLETC, and that she
had no motive to harm the appellant’s reputation. Id.
¶6 In contrast, the administrative judge found the appellant’s version of events
to be “so inherently improbable it renders his testimony not credible.” Id. The
administrative judge noted as particularly improbable the appellant’s claim that
A.N. anonymously pursued him by text and telephone for months, only revealing
herself as his admirer after she graduated from FLETC training. ID at 20-21.
Regarding the appellant’s demeanor while testifying, the administrative judge
stated that she “came away with the impression that he would change his story as
necessary to further his position.” ID at 22. The administrative judge also
identified significant differences between a May 3, 2010 email message that A.N.
submitted and a copy of the same message that the appellant submitted. ID
at 21-22; compare IAF, Tab 3, Subtab 4c at 13, with IAF, Tab 26, Ex. 8. She
6
observed that the appellant’s version of the message appeared to have been edited
to eliminate any references to a relationship between A.N. and the appellant while
A.N. was a student at FLETC. 4 ID at 21-22. The administrative judge considered
other documentary evidence that the appellant asserted supported his testimony,
but after weighing this evidence in light of all the circumstances, she found that
the agency’s version of events was more likely to be true than that of the
appellant. ID at 22-23. The administrative judge similarly treated testimony
from the other women with whom the appellant fraternized, making demeanor-
based credibility assessments and carefully weighing the testimony with other
record evidence. 5 ID at 20, 24, 27-28, 30-31.
¶7 In summary, we find no error in the administrative judge’s determination
that the appellant’s testimony was less credible than that of four women, three of
whom might have harmed their careers or significant relationships by making
potentially embarrassing personal admissions. These women worked for different
Federal agencies, did not know one other, were from different geographic
locations, and were in different training programs at FLETC when the
fraternization occurred. Their accounts of encounters with the appellant spanned
4
The administrative judge found similar alterations in text messages that the appellant
submitted to support his allegations regarding his contacts with R.M. She opined that
the appellant “purposefully inserted various self-serving texts into the log to show that
[R.M.] was the aggressor.” ID at 27; compare IAF, Tab 3, Subtab 4c at 14-51, with id.,
Subtab 4f at 1-17. On review, the appellant asserts that R.M.’s texts were incomplete
or inaccurate, whereas a human resources specialist visually verified his own texts in
his cellular telephone. PFR File, Tab 1 at 19-21. He also claims that texts that were
redacted from R.M.’s text log “could have supported [his] side of the story.” Id. at 21.
The appellant’s argument is misleading. The administrative judge considered only the
texts shared by both persons, and she concluded: “[M]ost of the text messages involved
playful flirtatious banter and were certainly not training related …. Obviously, this
is not the type of social contact allowed by agency policy.” ID at 26.
5
The appellant objects to a finding that M.V. testified credibly, in large part because he
believes it is impossible to “observe the candor and demeanor of a witness when they
are viewed from a TV monitor and are wearing headphones.” PFR File, Tab 1 at 19.
The Board has found such arguments unavailing. See, e.g., Thompson v. Department of
the Army, 122 M.S.P.R. 372, ¶ 21 (2015).
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several years, yet these accounts are quite similar. Moreover, the appellant
appears to have altered corroborating evidence regarding two of the women to
support his version of events. We thus defer to the administrative judge’s
credibility determinations. Because the administrative judge considered the
evidence as a whole, drew appropriate references, and made reasoned
conclusions, we find no reason to disturb her findings. Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-06 (1997); Broughton v. Department of Health &
Human Services, 33 M.S.P.R. 357, 359 (1987).
The appellant did not establish that the agency denied his due process rights.
¶8 On review, the appellant reiterates his arguments that some specifications of
the charges -- specifications 2 and 3 of charge 1, and specifications 1 and 2 of
charge 2 -- are impermissibly vague, thus violating his right to due process. PFR
File, Tab 1 at 4. These specifications largely involve events that occurred in
2007 and 2008. IAF, Tab 3, Subtab 4g at 1. The appellant asserts that “[t]he
Notice of Proposed Removal did not give specific times, dates or locations of the
alleged offenses of fraternization . . . [and] failed to provide [him] with the
opportunity to make an informed reply.” PFR File, Tab 1 at 4. He also argues
that specific witnesses testified to matters of which he was unaware and it was
impossible to prepare for their testimony. Id. at 5-6, 13.
¶9 The appellant’s arguments are unavailing. As the administrative judge
correctly explained, the agency provided “a great deal of specific information
[that] the appellant could have addressed,” and the “agency produced a
voluminous amount of investigatory documents and [reports of investigation]
upon which it relied.” ID at 35-36; IAF, Tab 3, Subtabs 4e, 4g. The agency even
conducted a secondary investigation when the deciding official deemed it to be
necessary for the purpose of confirming or refuting information in the appellant’s
response. IAF, Tab 3, Subtab 4e. As for his ability to respond to unexpected
witness testimony, the appellant was represented by counsel, and he has not
8
alleged that he was denied the opportunity to conduct discovery that would have
adequately prepared him for the hearing.
The appellant did not establish that the charges were stale or barred by laches.
¶10 The appellant reiterates his argument that Charge 1, Specifications 2, 3, and
4, and Charge 2, Specifications 1 and 2, were stale because they were based on
events that occurred as early as 2007. PFR File, Tab 1 at 4, 7-8, 13, 25-26. He
asserts that sustaining these specifications prejudiced him “due to the fact [that]
memories have faded, phone/text records are unavailable, witnesses are gone,
[there are] no hotel/store records, no surveillance videos, no instructor schedules,
etc.” Id. at 4.
¶11 The Board will consider “stale charge” claims as raising the equitable
defense of laches, which bars an action where an unreasonable delay in bringing
the action has materially prejudiced the subject of the action. Pinegar v. Federal
Election Commission, 105 M.S.P.R. 677, ¶ 25 (2007). A delay in investigating
allegations or initiating disciplinary action against an employee may constitute
procedural error, if a law, regulation or agency policy requires that allegations be
investigated and/or disciplinary action be proposed or taken within a certain time
period. See, e.g., Salter v. Department of the Treasury, 92 M.S.P.R. 355, ¶ 8-9
(2002) (finding that, in a performance-based action brought under 5 U.S.C.
Chapter 43, a 13-month delay between the notice of proposed removal and the
removal decision violated the applicable statutory time limit, but the appellant
did not show he was harmed by the error).
¶12 Here, the appellant has not shown that the delay was unreasonable, nor has
he shown that he was prejudiced. As the administrative judge explained, the
agency first became aware of the 2007 and 2008 incidents in 2013, when
investigating R.M.’s complaint. ID at 34-35. The administrative judge found that
when the agency learned that the appellant may have fraternized in the past with
persons other than R.M., it promptly investigated the allegations and initiated the
disciplinary process. Id. The appellant has offered no evidence that the agency
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delayed in initiating either its investigation or the subsequent disciplinary action.
The agency also turned over to the appellant the evidence upon which it had
relied during the advance notice period. IAF, Tab 3, Subtabs 4e, 4g. The
appellant’s argument is thus unavailing. 6
The appellant has not established that the deciding official failed to consider the
relevant factors or that the penalty was unreasonable.
¶13 The appellant argues that the deciding official erred when analyzing the
Douglas factors. PFR File, Tab 1 at 27-28; Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981). His argument specifically
pertains to the deciding official’s consideration of email messages he sent to
M.V. the day after she graduated from FLETC, when his interactions with her
would have no longer been restricted. PFR File, Tab 1 at 27-28. Even if the
deciding official erroneously considered those messages, as the appellant claims,
PFR File, Tab 1 at 28, the record nevertheless shows that he carefully weighed all
of the relevant factors pursuant to Douglas, IAF, Tab 3, Subtab 4b. Additionally,
the specification of charge 1 that pertains to M.V. was but one of the five
sustained specifications. Even if we were to eliminate that particular
specification, we find the charge would have still been sustained. Burroughs v.
Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990).
The appellant has not established that the administrative judge was biased.
¶14 Finally, the appellant argues that the administrative judge was biased
against him. PFR File, Tab 1 at 4-5. He explains that, at the hearing, the
administrative judge stopped his attorney from asking one of the women with
whom he fraternized if she had told her husband about her alleged history of
extramarital affairs. Id. at 4-5, 16. The appellant asserts that the administrative
6
The appellant added this defense more than 5 months after filing his appeal. IAF,
Tab 10.
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judge told his attorney that he could “take it up in the PFR” if he disagreed with
the ruling. Id. at 4.
¶15 An administrative judge’s decision to stop a line of questioning falls within
her considerable discretion regarding the conduct of the case and development of
the record. An administrative judge has wide discretion under 5 C.F.R.
§ 1201.41(b)(8), (10) to exclude witnesses where it has not been shown that their
testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal
Service, 27 M.S.P.R. 322, 325 (1985); cf., e.g., Special Counsel v.
Rivera, 61 M.S.P.R. 440, 443-44 (1994) (determining that no harmful error was
committed in limiting the questioning of an agency witness regarding matters
unrelated to the questions before the Board). The appellant has not explained
how the administrative judge’s ruling here represents an abuse of discretion. He
has not shown, for example, that the ruling affected his ability to defend himself
against the agency’s charges or to assert his affirmative defenses. Similarly, he
has not shown how testimony about the witness’s alleged marital indiscretions
with other persons would be material to the issue of whether he committed the
charged conduct or whether the agency erred in taking action against him.
¶16 The appellant also has not raised any matter that would call into question
the presumption of honesty and integrity that accompanies administrative
adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386
(1980). He likewise has not explained how the administrative judge’s reasonable
exercise of discretion evidences “a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Bieber v. Department of the
Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v.
United States, 510 U.S. 540, 555 (1994)). He also failed to support his
allegations of bias with an affidavit, as the Board requires. Lee v. U.S. Postal
Service, 48 M.S.P.R. 274, 280-82 (1991). We find that the appellant’s argument
11
of bias is unavailing, and for all of the reasons stated above, we affirm the
initial decision. 7
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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 United States 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
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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.
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The appellant also asserts that the Board should ignore the agency’s response to his
petition for review because the agency quoted a superseded version of 5 C.F.R.
§ 1201.115. PFR File, Tab 4 at 4. This argument is unavailing.
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If you are interested in securing pro bono representation for an appeal to the
United States 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.