Alton Wilson v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALTON F. WILSON, DOCKET NUMBER
Appellant, CH-0714-20-0600-I-1
v.
DEPARTMENT OF VETERANS DATE: March 4, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jason Matthews , Esquire, Dayton, Ohio, for the appellant.
Matthew O. Kortjohn , Dayton, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the agency’s decision to remove him from Federal service. On petition
for review, the appellant challenges the administrative judge’s credibility
determinations, which formed the basis of the initial decision. Petition for
Review (PFR) File, Tab 1 at 11-17. Generally, we grant petitions such as this one
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
only in the following circumstances: 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 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).
The administrative judge appropriately found that the agency’s removal
action, which was based on a charge of Inappropriate Conduct stemming from a
complaint from a female coworker of unwanted physical touching, was supported
by substantial evidence. Initial Appeal File (IAF), Tab 19, Initial Decision (ID)
at 4-9. In doing so, he assessed the credibility of, among others, the appellant
and the complaining witness against him, and he credited the complaining
witness’s version of events. ID at 8-9. Because a hearing was held below, and
the administrative judge’s credibility determinations are based, in part, on witness
demeanor at the hearing, we defer to those credibility determinations, absent a
sufficiently sound reason to disturb those findings. See Purifoy v. Department of
Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016); Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
We have carefully reviewed the appellant’s arguments on review, which
primarily seek to highlight purported internal and external inconsistencies in
witness testimony and written statements. PFR File, Tab 1 at 11-14. However,
we conclude that the appellant’s examples of inconsistent testimony or written
3
statements either concern matters not related to the encounter at issue between the
appellant and the female coworker or they are not actual inconsistencies in the
first instance. 2 Accordingly, we find that the appellant has failed to establish a
“sufficiently sound” reason to disturb the administrative judge’s credibility
determinations, and we defer to them here. 3 Haebe, 288 F.3d at 1301.
Additionally, the administrative judge correctly considered whether the
penalty of removal, as a part of the agency’s overall adverse action decision, was
2
We have also reviewed the appellant’s other claims regarding the complaining
witness’s credibility, specifically, his assertion that her version of events is inherently
improbable because she previously stated that his past behavior made her uncomfortable
and it would have been “counterintuitive” for her to voluntarily be alone in his
presence, and his assertion that she failed to follow agency policy on reporting
inappropriate conduct. PFR File, Tab 1 at 15-18. We find that these assertions do not
constitute “sufficiently sound” reasons to disturb the administrative judge’s credibility
determinations. Haebe, 288 F.3d at 1301.
3
After the record closed on review, the appellant filed a motion for leave to file an
additional pleading. PFR File, Tab 5. In his motion, he asserts that, in the time that
passed since filing his petition for review, he was adjudicated not guilty on the criminal
charge of sexual imposition, a charge which, he claims, relates to his physical
interaction with the female coworker at issue in this appeal. Id. at 4-5. He requests that
the Board permit him to file a supplemental petition for review addressing the not guilty
verdict and to submit the docket from the criminal case showing that he was acquitted.
Id. at 5. As explained by the Office of the Clerk of the Board, PFR File, Tab 6, the
Board’s regulations do not provide for pleadings other than a petition for review, a
cross petition for review, a response to the petition for review or cross petition for
review, and a reply to a response to a petition for review, 5 C.F.R. § 1201.114(a)(5).
Additionally, the Board generally will not consider an argument raised for the first time
on review absent a showing that it is based on new and material evidence not previously
available despite the party’s due diligence. Clay v. Department of the Army,
123 M.S.P.R. 245, ¶ 6 (2016). Regardless of whether appellant’s request is based on
new evidence that was not available prior to the close of record on review, we find that
evidence of an acquittal is not material to the outcome of this appeal. The Board has
acknowledged the different standards of proof in criminal actions and administrative
actions, where the former is based on proof beyond a reasonable doubt, and the latter
applies a lower standard of proof, such as preponderant or substantial evidence. See
generally Rodriguez-Ortiz v. Department of the Army, 46 M.S.P.R. 546, 548 (1991)
(explaining that a criminal acquittal is not binding in a civil action due to the differing
standards of proof); Adams v. Department of Transportation, 16 M.S.P.R. 158, 161
(1983), aff’d, 802 F.2d 470 (Fed. Cir. 1986) (Table), and aff’d sub nom. Stephens v.
Department of Transportation, 802 F.2d 468 (Fed. Cir. 1986) (Table). It has further
explained that, when the charged misconduct in an administrative action concerns the
underlying conduct and not the fact of a conviction, as is the case here, such misconduct
4
supported by substantial evidence. ID at 10-11; see Sayers v. Department of
Veterans Affairs, 954 F.3d 1370, 1375-79 (Fed. Cir. 2020). In doing so, he relied
on testimony from the deciding official, who testified that he gave great weight to
the fact that the appellant’s misconduct negatively impacted another employee
and had a greater impact on the agency’s mission than other types of misconduct
because it threatens the sense of safety and comfort felt by employees. ID at 10;
IAF, Tab 15, Hearing Recording (HR) (testimony of the deciding official). The
appellant has not challenged the administrative judge’s conclusion that the
agency’s selection of the penalty of removal is supported by substantial evidence,
and we discern no reason to disturb it. See Payne v. U.S. Postal Service,
74 M.S.P.R. 419, 428-30 (1997) (concluding that removal was within the
maximum limits of reasonableness for conduct involving sexual harassment with
physical contact arising out of a single incident, despite nearly 10 years of service
with no prior disciplinary record), aff’d, 135 F.3d 776 (Fed. Cir. 1998) (Table).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
may be sustained notwithstanding the dismissal of the criminal charges. See Larry v.
Department of Justice, 76 M.S.P.R. 348, 355 (1997). Accordingly, the appellant’s
acquittal on the criminal charge has no effect on the outcome in this administrative
action. Therefore, we deny the appellant’s motion for leave to file an additional
pleading. See 5 C.F.R. § 1201.115(d).
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. 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 prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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
If you submit a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 5 The court of appeals must receive your
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.