Janice E. Whittaker v. Department of Veterans Affairs ( 2017 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANICE E. WHITTAKER, DOCKET NUMBER
Appellant, DA-0752-15-0157-I-1
v.
DEPARTMENT OF VETERANS DATE: January 3, 2017
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Daniel J. Gamino, Oklahoma City, Oklahoma, for the appellant.
Joan M. Green, Esquire, Oklahoma City, Oklahoma, 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
dismissed the appeal for lack of jurisdiction. 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. 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, 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 agency decided to remove the appellant from her Clinical Dietetic
Technician position based on the charge of providing inaccurate information, i.e.,
telling her supervisor that she had a teaching schedule at Langston University
when in fact she had not been employed by the University for more than 10 years.
Initial Appeal File (IAF), Tab 7 at 36, 102. On July 29, 2014, before the effective
date of the removal, the agency and the appellant entered into a last‑chance
settlement agreement (LCA) that provided that the agency would hold the
decision to remove in abeyance for 3 years and rescind the removal after that
time, assuming that during those 3 years the appellant did not engage in any
conduct deemed by the agency to be an offense punishable by discipline under the
agency’s table of penalties. Id. at 32. The LCA provided that, if the appellant
engaged in any such conduct, the agency would reinstate the removal. Id. The
LCA also provided that, in the event that the agency reinstated the removal, the
appellant waived her right to appeal the removal to the Board. Id. The agency
reinstated the removal, effective September 29, 2014, stating that the appellant
had demonstrated misconduct under the provision of the agency’s table o f
penalties defining Careless or Negligent Workmanship Resulting in Waste or
Delay. Id. at 31.
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¶3 The appellant appealed the agency’s action. IAF, Tab 1. The
administrative judge issued a jurisdictional order, specifically informing the
appellant of what she needed to establish in order for the Board to have
jurisdiction over her appeal. IAF, Tab 2.
¶4 Based on the record, including the hearing testimony, the administrative
judge found that the appellant failed to show that she complied with the terms of
the LCA. IAF, Tab 29, Initial Decision (ID) at 7. He found that the appellant’s
supervisor credibly testified that the appellant’s patient assessments were replete
with errors, including errors that had the potential to compromise patient care,
and that such errors were punishable by discipline as Careless or Negligent
Workmanship Resulting in Waste or Delay. ID at 7-8. He also found that the
appellant failed to show that the agency breached the agreement or acted in bad
faith. ID at 8-9. He found, moreover, that the appellant voluntarily waived her
right to appeal her removal to the Board. ID at 9.
¶5 In her petition for review, the appellant asserts that her actions did not
result in patient neglect or harm. She contends that, if her supervisor had any
reservations about her work, the supervisor would not have allowed the appellant
to continue in her position for 2 weeks after she found errors in the patient chart
entries made by the appellant. The appellant asserts that she properly used a copy
and paste method to make entries to the patient’s charts , a method approved by
the agency. She also asserts, as she did below, that the agency failed to give her
notice of the basis for reinstating the removal action. Additionally, she asserts
that her removal does not promote the efficiency of the service. Petition for
Review (PFR) File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The appellant bears the burden of proving that an appeal is within the
Board’s jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i)(A). The Board lacks
jurisdiction over an action taken pursuant to an LCA in which an appellant waives
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her right to appeal to the Board. Willis v. Department of Defense, 105 M.S.P.R.
466, ¶ 17 (2007). To establish that a waiver of appeal rights in an LCA
should not be enforced, an appellant must show one of the following: (1) she
complied with the LCA; (2) the agency materially breached the LCA or acted in
bad faith; (3) she did not voluntarily enter into the LCA; or (4) the LCA resulted
from fraud or mutual mistake. Id.; Covington v. Department of the Army,
85 M.S.P.R. 612, ¶ 12 (2000). When an appellant raises a nonfrivolous factual
issue of compliance with an LCA, the Board must resolve that issue before
addressing the scope of and applicability of a waiver of appeal rights in the LCA.
Stewart v. U.S. Postal Service, 926 F.2d 1146, 1148 (Fed. Cir. 1991); Covington,
85 M.S.P.R. 612, ¶ 12.
¶7 Here, the appellant’s primary argument is that she complied with the LCA.
PFR File, Tab 1. First, she asserts that she did not violate the agreement because
her actions did not result in harm to a patient. However, the agency’s table of
penalties lists the charged misconduct as “Careless or Negligent Workmanship
Resulting in Waste or Delay.” IAF, Tab 7 at 336. Thus, on its face, this
misconduct need not result in actual harm. Further, while the lack of patient
harm may be a mitigating factor in a penalty determination, it does not mean that
the alleged misconduct did not occur. See Dwight v. Veterans Administration,
7 M.S.P.R. 37, 39 (1981) (finding mitigation appropriate, when the misconduct
was established, but the medical center engineer’s negligence did not result in
harm). Mitigation is not an appropriate consideration here, given that the
appellant’s removal penalty was effected pursuant to an LCA in which she waived
her Board appeal rights to challenge that penalty.
¶8 The appellant also asserts that she complied with the LCA because she
was not immediately removed from performing the duties of her position. PFR
File, Tab 1. As the administrative judge found, however, the delay in processing
the removal was reasonable because it took the appellant’s supervisor time to
review the appellant’s patient records and then to discuss her findings with her
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supervisor after she received an August 12, 2014 email from a dietician
complaining about the appellant’s work. ID at 9.
¶9 As she did below, the appellant asserts that her errors resulted from her
copying information from a patient’s prior record and pasting the information into
the patient’s current record. The appellant asserts that using this copy and paste
method for patient entries was proper for her position. At the hearing, the
appellant’s supervisor explained that the appellant, as a Clinical Dietetic
Technician, was responsible for conducting nutrition screenings and identifying
patients who were at a greater risk of malnutrition. After the appellant’s
screenings, a registered dietician would then assess those patients and determine
if early intervention was appropriate. ID at 5. The administrative judge found
not credible the appellant’s assertion that the copy and paste method was proper
for conducting nutrition screenings. Rather, he credited the testimony of the
appellant’s supervisor who emphasized the importance of accuracy in medical
records, and explained that copying and pasting could result in information that
was not current or valid being placed into a patient’s file, and was not an
acceptable method for making entries into patient charts . ID at 8. The Board
must defer to an administrative judge’s credibility determinations when, as here,
they are based, explicitly or implicitly, on observing 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) . We find that the appellant has not provided
any reason to overturn the administrative judge’s credibility determination
regarding whether the appellant failed to comply with the LCA .
¶10 Regarding the appellant’s assertion that the agency failed to notify her of
the basis for reinstating the removal action, PFR File, Tab 1, the administrative
judge properly noted that there are no due process concerns of notice and an
opportunity to respond at stake in circumstances involving an agency’s invocation
of an LCA’s provision reinstating a removal action, ID at 9 n*. The record shows
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that the appellant received notice and an opportunity to respond to the charges
that were the basis of the original removal action. IAF, Tab 7 at 36-102. The
administrative judge nonetheless considered the appellant’s assertion that the
agency failed to give her notice and an opportunity to respond as an allegation
that the agency acted in bad faith in invoking the LCA. He found that the
appellant’s supervisor credibly testified that, during a meeting on August 29,
2014, she showed the appellant specific patient records about which she had
concerns and gave the appellant an opportunity to respond to them. Notes taken
from that meeting show that the appellant’s supervisor showed or gave the
appellant a copy of nine patients’ records and that the appellant had an
opportunity during the meeting to explain her work. IAF, Tab 18 at 9-14.
Therefore, we find that the administrative judge correct ly determined that the
agency’s actions did not amount to bad faith. ID at 8 -10.
¶11 Finally, the appellant’s argument that her removal does not promote the
efficiency of the service is unavailing. PFR File, Tab 1. The Board has
addressed whether removal for violating an LCA promotes the efficiency of the
service and has found that violating a LCA demonstrates a lack of dependability
that undermines management’s confidence in an employee’s ability to perform his
duties. Bahrke v. U.S. Postal Service, 98 M.S.P.R. 513, ¶ 22 (2005). Here, the
appellant waived her Board appeal rights. Absent a finding of jurisdiction,
consideration of the efficiency of the service is outside the scope of this appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. Court of Appeals for the Federal Circuit. You must submit your reques t to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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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.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.