Phillip Cray v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PHILLIP A. CRAY, DOCKET NUMBER
Appellant, DA-0714-19-0257-I-1
v.
DEPARTMENT OF VETERANS DATE: March 12, 2024
AFFAIRS,
THIS ORDER IS NONPRECEDENTIAL 1
Nicole Taylor , Esquire, Dallas, Texas, for the appellant.
Sean A. Safdi and Daniel Morvant , Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal under 38 U.S.C. § 714. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant was a GS-06 Health Technician in the Podiatry Section of the
Surgical Service in the agency’s Dallas Veterans Administration Medical Center.
Initial Appeal File (IAF), Tab 8 at 260. On March 15, 2019, the agency proposed
the appellant’s removal under 38 U.S.C. § 714 based on three charges:
(1) Inappropriate Acceptance of Gifts (one specification); (2) Failure to Follow
Policy (eight specifications); and (3) Inappropriate Conduct (one specification). 2
Id. at 67-71. The first charge pertained to a November 27, 2017 technical
education forum that the appellant attended and for which the vendor presenting
the forum paid the appellant’s lodging and transportation expenses. Id. at 67. Six
specifications of Charge 2 pertained to allegedly unauthorized overtime that the
appellant incurred during May and June of 2018, and Specifications 7 and 8
pertained to alleged violations of the agency’s privacy policy and ethics code,
respectively. Id. at 67-68. Charge 3 pertained to patient care that the appellant
provided in one particular instance. Id. at 79. After the appellant responded, on
April 1, 2019, the deciding official issued a decision sustaining Charges 1 and 2
only and removing the appellant effective April 7, 2019. Id. at 17-21, 23.
The appellant filed a Board appeal, contesting the merits of his removal and
raising affirmative defenses of retaliation for equal employment opportunity
activity, violation of due process, and harmful procedural error. IAF, Tab 1,
Tab 20 at 3-4, Tab 33, Initial Decision (ID) at 11 n.5. After a hearing, the
administrative judge issued an initial decision affirming the appellant’s removal.
ID. She sustained Charge 1, pertaining to inappropriate acceptance of gifts, and
the six specifications of Charge 2 pertaining to unauthorized overtime. ID
at 2-11. The administrative judge found that the appellant failed to prove his
affirmative defenses. ID at 11-18.
2
The agency previously issued an identical proposal on November 29, 2018, but
rescinded it in order to allow the appellant to grieve a performance appraisal. IAF,
Tab 8 at 8, 26.
3
The appellant has filed a petition for review, arguing that the administrative
judge erred in sustaining the charges. 3 Petition for Review (PFR) File, Tab 1
at 1-2. He has attached documentation in support. Id. at 3-10. The agency has
filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly determined that the agency proved its charge
by substantial evidence.
In an appeal of an adverse action taken under 38 U.S.C. § 714(a), the
agency bears the burden of proving its charges by substantial evidence.
38 U.S.C. § 714(d)(2)(a). At this stage of the appeal, only Charge 1 and
Charge 2, Specifications 1-6 are still in contention.
Under Charge 1, Inappropriate Acceptance of Gifts, the agency alleged that
the appellant accepted an unauthorized gift from the Musculoskeletal Transplant
Foundation (MTF), an approved agency vendor, in violation of 5 C.F.R. § 2635,
subpart B, when MTF expensed $848.71 to cover the cost of the appellant’s
airfare, lodging, and transportation to attend a technical education forum. IAF,
Tab 8 at 67. The administrative judge found that MTF was a “prohibited source”
within the meaning of 5 C.F.R. § 2635.203(d) and that the appellant accepted a
gift, in the form of travel and lodging, from that prohibited source. ID at 4-5.
Although these facts are essentially undisputed, the administrative judge
considered the appellant’s argument that his supervisor authorized him to attend
the MTF forum and was aware that MTF covered the travel costs for attendance.
ID at 5. However, considering the record as a whole, and applying the factors set
forth in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), she
credited the supervisor’s testimony that the appellant did not ask for her
3
The appellant does not contest the administrative judge’s findings on the affirmative
defenses he raised below—allegations of reprisal for equal employment opportunity
activity, harmful error pertaining to a collective bargaining agreement provision, and a
due process violation. We therefore decline to revisit these findings, which appear
correct on their face. ID at 11-18; see 5 C.F.R. § 1201.115 (“The Board normally will
consider only issues raised in a timely filed petition or cross petition for review.”).
4
permission to attend the event, she never authorized the appellant to accept
payment of travel and lodging expenses from MTF, and she did not learn of his
attendance until after the fact. ID at 5-7.
On petition for review, the appellant argues that the administrative judge
failed to consider evidence documenting that his supervisor knew that he attended
the MTF technical education forum. PFR File, Tab 1 at 1. In support of his
argument, he cites to an excerpt from his fiscal year 2017 performance evaluation
as well as a performance self-assessment and request for quality step increase.
Id. at 1, 6-7. However, our review of these documents reveals no mention of the
November 2017 MTF forum. Although these documents tend to show that the
appellant’s supervisor was aware that he had attended multiple educational
conferences in the past year, mention of the MTF forum in particular is
conspicuously absent. Id. at 6-7. There is no basis to conclude from these
documents that the appellant’s supervisor was aware that he attended the MTF
forum, much less that she authorized him to accept reimbursement from MTF for
travel and lodging. 4 For the reasons explained in the initial decision, we agree
with the administrative judge that the agency proved Charge 1 by substantial
evidence. ID at 4-7.
Under Charge 2, Failure to Follow Policy, Specifications 1-6, the agency
alleged that the appellant violated Veterans Administration North Texas
Healthcare System (VANTHCS) Memorandum No. 05-04 by performing overtime
work that had not been approved in advance. IAF, Tab 8 at 68-69. Specifically,
the agency alleged that the appellant worked unauthorized overtime as a sitter in
the hospital’s Nursing Service on six separate dates in May and June 2018, for a
total of 36 hours. Id. In her initial decision, the administrative judge found that
4
Even if the appellant’s supervisor did purport to authorize him to accept
reimbursement from MTF, we would still sustain the charge because it does not appear
to us that such purported authorization in this case would constitute a valid exception to
the general rule of 5 C.F.R. § 2635.202. Cf. 5 C.F.R. § 2635.204 (setting forth
exceptions to the prohibition for acceptance of certain gifts).
5
VANTHCS Memorandum No. 05-04 provides in relevant part that “overtime must
be requested and approved in advance of work being performed,” that supervisors
are the requesting officials for overtime, and the Service Chiefs are the approving
officials for overtime. ID at 8; IAF, Tab 8 at 234, 242. The administrative judge
found, and it appears to be undisputed, that the appellant’s supervisor did not
specifically approve the overtime in question. ID at 8. The appellant, however,
argued that his supervisor gave blanket approval for overtime work as long as it
was done outside the Podiatry Section. Id. The administrative judge, however,
found that no such blanket approval existed, and she sustained the specifications.
ID at 9-10.
On petition for review, the appellant appears to contest one of the
administrative judge’s findings that supported her ultimate conclusion about the
blanket approval, i.e., that an individual’s overtime is paid for by the service to
which he is officially assigned regardless of whether that overtime is performed
in a different service. ID at 9. Specifically, the appellant argues that Part III of
the agency’s Request for and Authorization of Overtime Work form indicates that
the service in which the individual is employed receives reimbursement from the
service in which the employee renders overtime. PFR File, Tab 1 at 2, 4-5. We
have examined Part III of these forms, but we find them to be somewhat
ambiguous. Part III seems to show that funds can be transferred from one “time
and labor unit” to another within the hospital incidental to overtime worked, but
it does not specify the conditions required for this to occur. Nor, as the agency
points out, does it indicate that any such transfer actually occurred in this case
because Part III of the forms has been left blank. PFR File, Tab 1 at 4-5, Tab 3
at 10 n.1. Furthermore, in reaching her conclusion, the administrative judge also
considered the agency’s written overtime policy, 5 the credible testimony of the
5
We note that the appellant’s supervisor is a Section Chief and not a Service Chief.
IAF, Tab 8 at 44. It would therefore appear to be outside her authority under
VANTHCS Memorandum No. 05-04 to approve overtime, although she would be an
appropriate official to request overtime. IAF, Tab 8 at 242.
6
appellant’s supervisor, and the appellant’s recent detail to a non-patient care
position. ID at 9-10. Therefore, even if the appellant has identified some
evidence on review to support his allegation of blanket overtime approval outside
the Podiatry Section, we find that there is still substantial evidence to support the
agency’s allegation that the overtime at issue was unapproved. See 5 C.F.R.
§ 1201.4(p) (defining “substantial evidence”).
Finally, the appellant argues that the administrative judge should not have
relied on Hillen in assessing his credibility because, unlike the appellant in
Hillen, he never took a polygraph test. PFR File, Tab 1 at 1. He also appears to
argue that the administrative judge impugned his character by applying the Hillen
factors to his case. Id. We disagree. The instant appeal does not involve a
polygraph examination, but the holding in Hillen still applies, i.e., that 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 evidence; (6) the inherent improbability of the witness’s
version of events; and (7) the witness’s demeanor. Hillen, 35 M.S.P.R. at 458.
Furthermore, not every Hillen factor will necessarily be relevant in every case.
For instance, when there is no evidence in the record pertaining to the character
of a witness, this will not be a relevant factor for the administrative judge to
consider. See Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489,
¶¶ 14-15 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). Like the
administrative judge in Mithen, the administrative judge in this case does not
appear to have noted any pertinent character evidence. Therefore, despite
character being listed as a potentially relevant credibility factor under Hillen, the
7
appellant’s character does not appear to have factored into the administrative
judge’s decision.
We have reviewed the remainder of the documentary evidence that the
appellant has submitted with his petition, and we find that it is not material to the
outcome of the appeal. PFR File, Tab 1 at 3, 8-10.
We remand the appeal for the administrative judge to provide the parties with an
opportunity to present evidence regarding whether the agency’s error in reviewing
the proposed removal for substantial evidence was harmful.
The agency’s deciding official sustained the appellant’s removal based on
his conclusion that substantial evidence supported Charge 1 and Charge 2. IAF,
Tab 8 at 18. After the initial decision in this case was issued, the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) decided Rodriguez v.
Department of Veterans Affairs, 8 F.4th 1290, 1296-1301 (2021), in which it
determined that the agency erred by applying a substantial evidence burden of
proof to its internal review of a disciplinary action under 38 U.S.C. § 714. The
court found that substantial evidence is the standard of review to be applied by
the Board, not the agency. Id. at 1298-1300. Instead, the agency’s deciding
official must use a preponderance of the evidence burden of proof to
“determine[]” whether “the performance or misconduct . . . warrants” the action
at issue. Id. at 1298-1301 (quoting 38 U.S.C. § 714(a)(1)). The holding in
Rodriguez applies to all cases pending with the Board, regardless of when the
events at issue took place. Semenov v. Department of Veterans Affairs,
2023 MSPB 16, ¶ 22.
The administrative judge and the parties did not have the benefit of
Rodriguez, and therefore were unable to address its impact on the appeal. We
therefore must remand this case for adjudication of whether the agency’s
application of the substantial evidence standard of proof was harmful error. See
Semenov, 2023 MSPB 16, ¶ 22. A harmful error is an error by the agency in the
application of its procedures that is likely to have caused the agency to reach a
8
different conclusion from the one it would have reached in the absence or cure of
the error. Id., ¶ 23; 5 C.F.R. § 1201.4(r). The appellant bears the burden of
proving his affirmative defenses by preponderant evidence. Semenov,
2023 MSPB 16, ¶ 23; 5 C.F.R. § 1201.56(b)(2)(i)(C). On remand, the
administrative judge shall provide the parties with an opportunity to present
evidence and argument, including holding a supplemental hearing, addressing
whether the agency’s use of the substantial evidence standard in the removal
decision constituted harmful error. Semenov, 2023 MSPB 16, ¶ 24.
On remand, the administrative judge should apply the Douglas factors and review
the agency’s penalty selection. 6
The administrative judge found that because the agency proved the charge
by substantial evidence, the removal penalty must be affirmed. ID at 17-18.
After the initial decision was issued in this case, the Federal Circuit issued its
decision in Connor v. Department of Veterans Affairs, 8 F.4th 1319 (Fed. Cir.
2021). In Connor, the Federal Circuit determined that the agency and the Board
must consider and apply the Douglas factors in selecting and reviewing the
penalty under 38 U.S.C. § 714. Connor, 8 F.4th at 1325-26; see Semenov,
2023 MSPB 16, ¶¶ 44-50 (stating that, consistent with the Federal Circuit’s
decision in Connor, 8 F.4th at 1325-26, the agency and the Board must apply the
Douglas factors in reviewing the penalty in an action taken under 38 U.S.C.
§ 714).
The administrative judge and the parties did not have the benefit of
Connor, and thus were unable to address its impact on this appeal. Therefore,
remand is also required regarding this issue. Connor, 8 F.4th at 1326-27. On
remand, the administrative judge should permit the parties to submit additional
evidence and argument on the penalty issue, to include holding a supplemental
hearing on the penalty, if requested. See Semenov, 2023 MSPB 16, ¶ 50. In
6
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
provided a nonexhaustive list of factors relevant to penalty determinations.
9
reviewing the penalty, the administrative judge should determine whether the
agency proved by substantial evidence that it properly applied the relevant
Douglas factors and whether the agency’s penalty selection was reasonable and, if
not, remand the appellant’s removal to the agency for a new removal decision.
Id. (citing Connor, 8 F.4th at 1326-27; Sayers v. Department of Veterans Affairs,
954 F.3d 1370, 1375-76, 1379 (Fed. Cir. 2020)). If the appellant does not prevail
on the aforementioned affirmative defense on remand, and the administrative
judge affirms the agency’s choice of penalty, the administrative judge may adopt
prior findings concerning the agency’s charges and previously adjudicated
affirmative defenses in their remand initial decision. 7
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7
We recognize that the administrative judge who oversaw the proceedings below and
issued the initial decision is no longer with the Board. This does not, however,
preclude the administrative judge assigned to this case on remand from incorporating
the prior administrative judge’s findings, where appropriate. See Lin v. Department of
the Air Force, 2023 MSPB 2, ¶ 24.