Tyrone M. Carr v. Department of Veterans Affairs ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TYRONE M. CARR, DOCKET NUMBER
Appellant, CH-0752-13-1561-I-1
v.
DEPARTMENT OF VETERANS DATE: September 30, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
William A. Jaeger, Esquire, Chicago, Illinois, for the appellant.
Timothy B. Morgan, Esquire, Chicago, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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). 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency removed the appellant from his position as a File Clerk based
upon charges of solicitation of funds from a veteran beneficiary, threatening a
veteran beneficiary, abusing a veteran patient beneficiary, and conduct
unbecoming a federal employee. Initial Appeal File (IAF), Tab 3, Subtabs 4a, 4c.
The agency charged that the appellant had solicited money from the alleged
victim in exchange for assisting the victim with his benefits claim, and that the
appellant referenced his status as a “gang chief” in order to intimidate the alleged
victim. Id., Subtab 4c. The appellant appealed his removal, alleging that he
should not have been removed based solely on hearsay evidence from one person
(i.e., the alleged victim). IAF, Tab 1. After holding a hearing, the administrative
judge reversed the appellant’s removal, finding that the agency based the
appellant’s removal almost entirely on uncorroborated hearsay, and that based
upon the hearsay and non-hearsay evidence, the agency had not proven any of its
four charges by preponderant evidence. IAF, Tab 27, Initial Decision (ID) at 14.
3
¶3 The agency has petitioned for review, challenging both the administrative
judge’s credibility determinations and the weight that she accorded to the
witnesses’ testimony. Petition for Review (PFR) File, Tab 3 at 11-22.
Additionally, the agency argues that the administrative judge did not properly
analyze hearsay evidence, and that she mischaracterized text message and
voicemail evidence as hearsay. Id. at 14, 18-20. Finally, the agency challenges
several of the administrative judge’s factual conclusions and procedural rulings.
Id. at 12-15. The appellant has responded in opposition to the petition for review.
PFR File, Tab 11.
¶4 The Board will sustain an agency’s charge only if it is supported by a
preponderance of the evidence. Jordan v. Department of the
Treasury, 102 M.S.P.R. 390, ¶ 7 (2006). A preponderance of the evidence is the
degree of relevant evidence that a reasonable person, considering the record as a
whole, would 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).
¶5 At the hearing, agency witnesses, including the detective, the special agent,
the social worker, the social worker’s supervisor, and the deciding official,
testified based upon hearsay from the alleged victim. Hearing Transcript
at 8-197. The record also contains a two-sentence statement from the alleged
victim. IAF, Tab 3, Subtab 4d at 11. The Board may find that hearsay evidence
is sufficient to sustain an adverse action charge. Vaughn v. U.S. Postal
Service, 109 M.S.P.R. 469, ¶ 9 (2008), aff’d, 315 F. App’x 305 (Fed. Cir. 2009).
However, when an agency relies on hearsay evidence to support its action, the
administrative judge must first determine whether such evidence has significant
probative value according to the circumstances of the case. Luten v. Office of
Personnel Management, 110 M.S.P.R. 667, ¶ 12 (2009). If so, the administrative
judge must then determine whether the value of that hearsay evidence is
outweighed by the other evidence of record, including the appellant’s
submissions. Id.
4
¶6 The following factors may be included in considering the probative value of
this hearsay evidence: (1) the availability of persons with firsthand knowledge to
testify at the hearing; (2) whether the statements of the out-of-court declarants
were signed or in affidavit form, and whether anyone witnessed the signing;
(3) the agency’s explanation for failing to obtain signed or sworn statements;
(4) whether the declarants were disinterested witnesses to the events, and whether
the statements were routinely made; (5) consistency of declarants’ accounts with
other information in the case, internal consistency, and their consistency with
each other; (6) whether corroboration for statements can otherwise be found in
the agency record; (7) the absence of contradictory evidence; and (8) the
credibility of the declarant when he made the statement attributed to him.
Vaughn, 109 M.S.P.R. 469, ¶ 9. The administrative judge focused primarily on
the last factor, finding that the alleged victim was not a credible declarant due to
his history of substance abuse and mental illness. ID at 12, 14. With respect to
the first factor regarding the availability of persons with firsthand knowledge to
testify at the hearing, the administrative judge considered the unavailability of the
alleged victim due to the fact that the agency lost contact with him. However, she
found that the agency should have supported its case by contacting other agency
patients who, according to testimony regarding statements by the alleged victim,
knew of the appellant’s gang affiliation and may have corroborated the statements
of the alleged victim. ID at 12.
¶7 As to the second and third factors concerning out-of-court statements, the
agency obtained a signed and witnessed statement from the alleged victim. IAF,
Tab 3, Subtab 4d at 11-12. However, the administrative judge noted that this was
the only written statement from the alleged victim and it was only two sentences
long. She did not find that this statement was particularly credible and did not
accord great weight to the statement. ID at 8. Concerning the sixth factor, the
administrative judge concluded that corroboration for the alleged victim’s
statements could not otherwise be found in the agency record. She found that
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testimony about the text message and voicemail messages did not corroborate the
alleged victim’s claims because she found that the messages were not of a
threatening nature and were not as frequent as claimed by the alleged victim. ID
at 11. She also considered the fact that the appellant had not accessed the alleged
victim’s benefits file as supportive of a finding that the appellant had not asked
the victim for money in exchange for assistance with his benefits claim. ID at 12.
Regarding the seventh factor concerning contradictory evidence, the
administrative judge considered that the hearsay evidence was inconsistent with
the testimony of the appellant and other witnesses. She gave less weight to the
hearsay evidence and instead found that the appellant and the alleged victim had
an amicable relationship. ID at 10-11. Considering this analysis, we reject the
agency’s argument that the administrative judge did not properly assess the
hearsay evidence. We agree with the administrative judge’s finding that the
hearsay evidence in this case was outweighed by the other evidence of record. 2
¶8 We also see no reason to disturb the administrative judge’s credibility
determinations. 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 administrative judge found that all of the witnesses were credible. ID at 6.
However, in particular, the administrative judge found that the appellant was
credible when he testified about his former gang involvement and his attempts to
2
Although the agency argued that the detective’s testimony concerning a text message
and voicemail messages did not constitute hearsay, PFR File, Tab 3 at 13, we agree
with the administrative judge’s ruling that this was indeed hearsay, see Taylor v. U.S.
Postal Service, 75 M.S.P.R. 322, 325 (1997) (citing Fed. R. Evid. 801(c), which
defines hearsay as “a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted”).
6
assist the alleged victim as opposed to threaten him and solicit funds. ID at 13.
The administrative judge also found that the testimony of other witnesses,
including the appellant’s coworkers, was credible. ID at 9-11. We find no reason
to disturb the administrative judge’s findings.
¶9 The agency has argued that the administrative judge erred by failing to fully
consider the testimony and statements of the agency clinical staff. PFR File,
Tab 3 at 21. We disagree. The administrative judge did indeed consider the
testimony of the clinical staff. ID at 8-9. Additionally, the administrative judge
is not required to fully address all of the evidence of record in her decision and
her failure to discuss evidence does not mean that she did not consider it. See
Hooper v. Department of the Interior, 120 M.S.P.R. 658, ¶ 14 (2014). We have
considered the agency’s remaining arguments. PFR File, Tab 3. However, these
arguments present no basis for disturbing the initial decision. The administrative
judge properly found that the agency failed to prove its charges and properly
reversed the removal action. 3
ORDER
¶10 We ORDER the agency to cancel the removal and to retroactively restore
the appellant effective June 30, 2013. See Kerr v. National Endowment for the
3
The appellant has filed a petition for enforcement concerning interim relief in this
case, stating that he has not yet received his salary and benefits as was required by the
administrative judge’s order. Compliance File (CF), Tab 1. The agency responded that
the appellant would soon be reinstated to a nonduty pay status retroactive to the
administrative judge’s decision. CF, Tab 5. We find that this compliance issue is
moot. The agency must instead comply with the order contained herein. See Aquino v.
Department of Homeland Security, 121 M.S.P.R. 35, ¶¶ 6-8 (2014) (the Board did not
exercise its discretion to dismiss the agency’s petition for review due to the agency’s
failure to comply with the interim relief order by not reinstating the appellant on an
interim basis because the agency had provided the appellant with compensation and
benefits since the date of the initial decision and because the issue of the agency’s
compliance with the interim relief order was moot by virtue of the Board’s final
decision ordering the appellant reinstated to employment).
7
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶11 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal
Service Regulations, as appropriate, no later than 60 calendar days after the date
of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carry out
the Board’s Order. If there is a dispute about the amount of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
¶12 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶13 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶14 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
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Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
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
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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.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.