Dolores Jean Goodblanket v. Department of Veterans Affairs ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOLORES JEAN GOODBLANKET, DOCKET NUMBER
Appellant, DA-0752-14-0084-I-1
v.
DEPARTMENT OF VETERANS DATE: November 10, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Johnny Deleon, Big Spring, Texas, for the appellant.
Kenneth S. Carroll, Esquire, Dallas, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal for unauthorized access to a medical record 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 decision is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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).
BACKGROUND
¶2 The agency removed the appellant from her position as an Administrative
Officer in the West Texas VA Health System for unauthorized access to a medical
record and lack of candor. Initial Appeal File (IAF), Tab 6 at 17-19 (decision
letter), 31-32 (proposal notice). The deciding official found that the appellant
had accessed an employee’s medical record in the Computerized Patient Record
System (CPRS) without authorization or a legitimate business reason, which
violated agency privacy and security policies. IAF, Tab 6 at 17-19. The decision
letter also upheld the specification in the lack of candor charge, finding that the
appellant had testified during a fact finding investigation that she had not
accessed the employee’s medical record and that this testimony was discredited
when the access was confirmed by a Sensitive Patient Access Report (SPAR).
Id.; see IAF, Tab 6 at 38-41. As reflected in the agency fact finding report and
the appellant’s rebuttal, the appellant opened the CPRS record of fellow employee
C.R. in order to find his cellular telephone number after he had called her work
extension from that number and recommended that she avoid the human resources
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office that day due to a misunderstanding with his wife, another agency
employee. See IAF, Tab 6 at 23-27, 38-41. The deciding official determined that
removal was appropriate and within the range of reasonableness, given the gravity
of the sustained charges and the lack of mitigating circumstances. Id. at 18.
¶3 The appellant appealed the removal, arguing that the agency did not follow
proper protocol, there were disparate penalties for the parties involved, she had
no prior disciplinary actions in 5 years of service, and human resources
employees at the agency abused their position in making a personal attack against
her using agency resources. IAF, Tab 1 at 4-6. During the hearing, the appellant
testified that she had misunderstood the question during the fact finding
investigation as she did not consider a telephone number part of a medical record
but admitted to accessing the CPRS record to find the employee’s telephone
number. After holding the requested hearing, the administrative judge affirmed
the removal action, finding that the agency had proven both charges by
preponderant evidence and that removal promoted the efficiency of the service
and was reasonable. IAF, Tab 16, Initial Decision (ID).
¶4 On review, the appellant argues that she did not violate the Health
Insurance Portability and Accountability Act (HIPPA), or the agency’s privacy
and security policies, and contends that the agency violated her procedural due
process rights in failing to provide her a copy of the SPAR report during the fact
finding interview. Petition for Review (PFR) File, Tab 1 at 4. The agency
responds that the appellant has not disputed the facts of the case or the
administrative judge’s presentation of the facts in the initial decision but instead
tries to characterize her actions as minor violations. PFR File, Tab 3 at 4-5. The
agency maintains that the appellant’s lack of candor and “cavalier attitude about
patient privacy” affects public trust in the agency, which is charged with ensuring
compliance with privacy laws by Congress. Id.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the charge of unauthorized access to
a medical record.
¶5 On review, the appellant does not deny that she accessed the employee
medical record in question but asserts that her actions did not violate HIPPA, the
Health Care System Memorandum PO-01—Privacy Policy, or Health Care System
Memorandum ISO-09—Automated Information Systems Security Policy “due to
her having approved access requirements.” PFR File, Tab 1 at 4; see IAF, Tab 6
at 83-163. The appellant asserts that she had only the “minimum necessary
access level required to carry out [her] authorized functions” and contends that
the CPRS system is used for administrative as well as health-related reasons.
PFR File, Tab 1 at 6-7. Thus, while the appellant admits accessing C.R.’s CPRS
record, she asserts that she did so for a legitimate business reason as she needed
to contact the employee, who had no expectation of privacy in the cellular
telephone number from which he had called her work extension. Id. at 7. The
appellant does not address that, in opening that CPRS record, she had access to
not only the employee’s telephone number but also to his confidential medical
records.
¶6 The record indicates that the appellant had no legitimate business reason for
accessing the medical record in question, and the agency met its burden of
proving unauthorized access by a preponderance of the evidence. The SPAR
report of C.R.’s CPRS file shows that the appellant accessed the record on the day
in question, and the appellant at no point has disputed the accuracy of the SPAR
report. IAF, Tab 6 at 65. Although the appellant maintains that the access was
authorized as she needed to find C.R.’s telephone number, she admitted in
hearing testimony that the page she viewed containing the telephone number also
contained medical information. See PFR File, Tab 1 at 6-7; ID at 7. As noted by
the administrative judge, the appellant’s hearing testimony was contradictory, as
at one point she testified that she did not notify her supervisor regarding the
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incident because she felt that it was “personal” and “embarrassing” but later
claimed a business purpose, testifying that she needed to contact C.R. to clarify
the situation as she had to deal with human resources on a daily basis, although
she admitted that she did not leave a voicemail or call him back later that day. ID
at 7. Thus, we find that the record clearly shows that the appellant accessed the
CPRS record in question and that the agency proved that the access was
unauthorized as the appellant had no legitimate business purpose for accessing
that individual’s medical record, even if she sought only to view his contact
information. We agree with the administrative judge that preponderant evidence,
including the SPAR report and the appellant’s own admissions, support this
specification and charge.
The administrative judge properly sustained the lack of candor charge.
¶7 On review, the appellant argues that she had no intention of deceiving the
fact finding panel and maintains that she inaccurately answered the question of
accessing the CPRS record because she misunderstood the question. PFR File,
Tab 1 at 9. The appellant further blames her misunderstanding on the agency’s
failure to inform her of the SPAR report at that time. Id. We find that the
administrative judge correctly found that the agency proved by preponderant
evidence the charge of lack of candor. See ID at 8-10.
¶8 An agency may prove lack of candor by showing that the appellant “fail[ed]
to disclose something that, in the circumstances, should have been disclosed in
order to make the given statement accurate and complete.” Ludlum v. Department
of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002). Although lack of candor
“necessarily involves an element of deception,” it does not require proof of intent
to deceive. Id. at 1284-85. The appellant does not deny her factually inaccurate
response to the question regarding her access of C.R.’s medical record but
maintained in both pleadings and testimony that the inaccuracy resulted from her
misunderstanding that the informational screen she accessed was part of the
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medical CPRS record. See IAF, Tab 6 at 21-27. The appellant testified that she
realized her misunderstanding after the fact finding interview had concluded and
spoke to her union representative. She testified that she did not make any attempt
to clarify her response to the fact finders even after the proposed removal,
asserting that she did not know that she could offer a clarification. See ID at
8-10. In her written response to the proposed removal, the appellant claimed that
she “misspoke at the fact finding because of [the] whirlwind of
emotions/accusations” levied at her during the interview and surrounding events.
IAF, Tab 6 at 26. As noted by the administrative judge, the appellant admitted at
the hearing that she knew that CPRS was a medical record at the time she
accessed the system. ID at 10.
¶9 We have considered the appellant’s arguments regarding her confusion
regarding the questioning but discern no reason to reweigh the evidence or
substitute our assessment of the record evidence for that of the administrative
judge. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding
no reason to disturb the administrative judge’s findings when the administrative
judge considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same). The administrative judge noted
the testimony of the Information Security Officer that the appellant gave no
indication of misunderstanding his questioning during the fact finding interview
and that the appellant “did not at any time correct” her misstatement. See ID at
8--10. The administrative judge provided adequate reasoning for her finding that
the appellant lacked candor when she told the Information Security Officer that
she did not access C.R.’s medical record. ID at 8-10. The appellant has not
provided sufficiently sound reasons on review to overturn the administrative
judge’s findings concerning the lack of candor charge. See Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (the Board must give deference
to an administrative judge’s credibility determinations when they are based,
7
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).
The administrative judge appropriately found that the agency action promotes the
efficiency of the service and that the penalty of removal is reasonable.
¶10 On petition for review, the appellant does not appear to challenge, and we
discern no reason to disturb, the administrative judge’s finding that the
appellant’s misconduct bears a nexus to the efficiency of the service. See PFR
File, Tab 1; ID at 10. Rather, the appellant seems to focus on the reasonableness
of the penalty, as her petition for review reiterates that she had offered to enter a
settlement agreement with the agency for a lesser penalty and she was willing to
take a reprimand or 30-day suspension to demonstrate taking responsibility for
her actions. PFR File, Tab 1 at 9. However, when all agency charges are
sustained, the Board will review the agency-imposed penalty only to determine
whether the agency considered the relevant Douglas 2 factors and exercised
management discretion within tolerable limits of reasonableness. See Woebcke v.
Department of Homeland Security, 114 M.S.P.R. 100, ¶ 7 (2010). The record
contains an in-depth analysis by the Chief of Staff of each Douglas factor,
completed prior to the removal decision. IAF, Tab 6 at 34-36. The decision itself
noted that the deciding official had considered factors including the appellant’s
past work record but that, given the gravity of the sustained charges, mitigation of
the proposed removal was not warranted. Id. at 18. As discussed by the
administrative judge, the deciding official testified that he had considered the
Douglas factors prior to removing the appellant, focusing on the serious breach of
privacy and security in the unauthorized access to the medical record and the loss
of trust in the appellant due to her lack of candor in the fact finding investigation.
2
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
presented a nonexhaustive list of 12 relevant factors in determining a penalty for an act
of misconduct.
8
See ID at 11. Both the deciding official and the Information Security Officer
testified that the appellant had undergone training regarding the agency’s security
and privacy policies, and the appellant admitted that she had received a warning
of such policies on the CPRS sign-in screen.
¶11 The appellant’s allegation of disparate penalties is without merit. To
establish disparate penalties, the appellant must show that there is “enough
similarity between both the nature of the misconduct and the other factors to lead
a reasonable person to conclude that the agency treated similarly-situated
employees differently, but the Board will not have any hard and fast rules
regarding the ‘outcome determinative’ nature of these factors.” Boucher v. U.S.
Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012) (quoting Lewis v. Department of
Veterans Affairs, 113 M.S.P.R. 657, ¶ 15 (2010)). An appellant’s initial showing
of disparate penalties triggers an agency’s burden to prove a legitimate reason for
the difference in treatment between the appellant and other employees.
Boucher, 118 M.S.P.R. 640, ¶ 24. During the hearing, the deciding official
testified that the agency had removed other employees for unauthorized access to
medical records. The appellant and her representative asserted in pleadings and
testimony that the spouse of the employee, whose CPRS record the appellant
accessed, violated the same policies by entering her husband’s network account.
See IAF, Tab 12 at 7-8. During cross-examination by the appellant’s
representative, the deciding official testified that a password violation is not the
same misconduct as unauthorized access to CPRS, which indicates HIPPA
violations with statutory monetary penalties imposed on the agency. We find that
the appellant has not made an initial showing of disparate penalties and note that
the appellant submitted no evidence of similarly-situated comparators.
Accordingly, we find that the administrative judge properly considered whether
the deciding official evaluated the relevant Douglas factors and correctly
9
determined that the penalty of removal did not exceed the tolerable limits of
reasonableness.
¶12 On review, the appellant argues that the agency violated her right to due
process by failing to inform her of the SPAR report, used as evidence against her,
prior to the fact finding interview. PFR File, Tab 1 at 8. The summary of the
prehearing conference noted that the appellant raised no affirmative defenses and
did not discuss due process as an issue in dispute. IAF, Tab 14. The appellant
filed no objection or motion to supplement the memorandum prior to the hearing.
The Board generally 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. See Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
¶13 Even assuming that the issue of due process is properly before the Board,
we find no merit to the appellant’s argument, which cites but mischaracterizes
relevant Board precedent. A federal employee is entitled to due process,
including notice and a meaningful opportunity to respond, prior to being
removed. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546
(1985); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376
(Fed. Cir. 1999). The appellant makes no allegation of an ex parte
communication by the agency to the deciding official after the proposed notice of
removal or that the agency failed to respond to a request for documents. See
Stone, 179 F.3d at 1372-73. The appellant submitted a copy of the proposal of
removal in her initial appeal, indicating the SPAR report used as evidence in the
lack of candor specification and notifying the appellant of her right to review the
evidence. See IAF, Tab 1 at 9-10. The appellant presents no authority for her
position that due process required the agency to inform her of all relevant
evidence prior to the fact finding interview to prevent her from making inaccurate
statements. The record shows that the appellant received notice of the SPAR
10
report in the proposed removal and notice of her right to review the evidence, and
there is no indication of ex parte communications with the deciding official.
PFR File, Tab 1 at 8. Thus, the record indicates that the appellant had a
meaningful opportunity to respond to the proposed removal and was not denied
due process.
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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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.