Dana Romero v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANA ROMERO, DOCKET NUMBER
Appellant, DC-0752-15-0045-I-1
v.
DEPARTMENT OF THE NAVY, DATE: July 18, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sara McDonough, Washington, D.C., for the appellant.
Malcolm G. Schaefer, Cherry Point, North Carolina, 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
affirmed his removal for unauthorized removal of Government property.
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 the erroneous application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 5 C.F.R. § 1201.117(c).
2
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, 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).
¶2 Prior to his removal, the appellant was an Air Conditioning Equipment
Mechanic, WG-5306-11, at the agency’s Fleet Readiness Center (FRC) East in
Cherry Point, North Carolina. Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 42.
The agency charged him with Unauthorized Removal of Government Property
(five specifications) and proposed his removal. IAF, Tab 4 at 112-13. After
considering his oral reply and the record evidence, the deciding official sustained
four of the five specifications and determined that the sustained specifications
justified the penalty of removal. Id. at 43-45. The appellant filed this appeal.
IAF, Tab 1. The agency has since withdrawn all specifications except the fifth
one, which states that the appellant “removed eight pieces of copper [heating,
ventilation, and air conditioning] coils from FRC East controlled property without
authorization.” Hearing Compact Disc (HCD) (May 7, 2015) (withdrawing
Specifications 1 through 3); IAF, Tab 4 at 113.
¶3 After a 2-day hearing, the administrative judge found that the agency
proved its remaining charge by preponderant evidence. IAF, Tab 35, Initial
Decision (ID) at 3-17. The administrative judge rejected the appellant’s
contentions that the charge was unconstitutionally vague and that the agency
deprived him of his right of due process. ID at 17‑19. The administrative judge
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sustained the charge and found that removal was a reasonable penalty that
promoted the efficiency of the service. ID at 19‑24.
¶4 The appellant filed this petition for review. 2 Petition for Review (PFR)
File, Tabs 9, 23. On review, he asserts that the administrative judge made
erroneous findings of material fact and did not properly conduct an analysis of
witness credibility pursuant to Hillen v. Department of the Army, 35 M.S.P.R. 453(1987). He asserts that, for this reason, the agency failed to meet its evidentiary
burden. PFR File, Tab 23 at 4, 10‑18.
¶5 The following facts are pertinent to this appeal. The appellant’s job duties
included cleaning up after finishing installation and maintenance assignments, for
example, removing scrap materials to the FRC East recycling facility or “scrap
yard,” or to another area for the collection of surplus materials known as the “lay
down yard.” IAF, Tab 14 at 51-52. The scrap yard is located on post, but it is
necessary to leave and re-enter the post to access it. IAF, Tab 19 at 29. The lay
down yard is also located on post. It is unlocked and accessible to anyone
already on post. IAF, Tab 14 at 33.
¶6 In November 2013, the appellant was one of a group of employees who
replaced condenser coils, compressors, and other components of the heating and
cooling units located on the roof of Building 133. IAF, Tab 19 at 7. The required
clean-up for this job included moving the old coil panels and other parts to the
scrap or lay down yard for eventual recycling. IAF, Tab 14 at 51. At some point
between November 2013 and February 15, 2014, the old coil panels were cut into
approximately 36 pieces. Id. at 53. Employees used a crane to remove most of
these pieces from the roof of Building 133. Id. at 51. In February, however, the
2
The Board allowed the appellant to file a corrected petition for review to change
certain citations and to delete two sentences in the original petition for review to which
the agency had objected. PFR File, Tabs 9, 20, 22‑23. We have cited the corrected
petition for review in this order. PFR File, Tab 23. The agency submitted a response to
the corrected petition for review, and the appellant replied. PFR File, Tabs 24-25. We
deny the agency’s subsequent motion to strike the appellant’s reply. PFR File, Tab 26.
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appellant moved approximately eight remaining coil pieces into a penthouse on
the roof of Building 133. IAF, Tab 17 at 23.
¶7 In February 2014, the agency became aware of the coil pieces remaining on
the roof of Building 133 after two employees who were on the roof for another
purpose discovered the coils. IAF, Tab 14 at 53, Tab 19 at 48. Later the same
day, the appellant moved two of the coil pieces to an area behind Building 133.
IAF, Tab 15 at 19. Suspecting that the appellant was planning to steal the
remaining coil pieces, L.R., an agency official responsible for maintenance, asked
K.T., the post Command Investigator, to conduct surveillance on the
appellant. Id. at 48-49; IAF, Tab 22.
¶8 On the morning of February 23, 2014, K.T. and two other investigators
began surveillance of the appellant. IAF, Tab 22 at 8-10. The investigators
tracked the appellant’s activities for most of the day, though there were times
when they did not have a direct line of sight of him. IAF, Tab 14 at 33, Tab 19
at 63-66. They did not monitor or observe the lay down yard at all. IAF, Tab 14
at 33, Tab 19 at 85. They observed the appellant, however, using an electric cart
to move approximately eight coil pieces to the exterior side of Building 139.
IAF, Tab 15 at 21, Tab 19 at 63-64.
¶9 The appellant asserted that later that day, he placed the coil pieces inside a
white Government van and attempted to drop the coils at the scrap yard, which
was closed. IAF, Tab 15 at 23. He further asserted that he instead took the
pieces to the lay down yard. Id. He asserted that, after he left the coils in the lay
down yard, he left the post via the Main Gate driving the van. Id.; IAF, Tab 16
at 5. The investigators saw the appellant leaving the post in the van at 1:40 p.m.
IAF, Tab 22 at 8-10, Tab 34 at 4. The appellant asserted that there were no coil
pieces in the van at that time and that he drove the van directly to a nearby Shell
station and filled the gasoline tank. IAF, Tab 16 at 13, 22, Tab 19 at 96. He
returned to post at approximately 2:19 p.m. IAF, Tab 16 at 22, Tab 19 at 66.
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¶10 K.T. approached the appellant upon his return and asked about the coils,
which were not in the back of the van. IAF, Tab 19 at 66. The appellant
explained that he had left the coils in the lay down yard earlier that day. Id.K.T., the appellant, and an agency maintenance supervisor, R.H., went to the lay
down yard, where they did not find the coil pieces. Id. at 67; IAF, Tab 23 at 10.
The ground also appeared undisturbed in the area where the appellant said he had
placed the coils. IAF, Tab 19 at 67.
¶11 The coil pieces were never found. IAF, Tab 23 at 10. The appellant
averred that he did not steal or sell the coils to a business that purchased scrap
metal. IAF, Tab 16 at 13, Tab 20 at 76-78 (receipts and statements from local
metal buyers). In sustaining the charge, however, the deciding official, J.G.,
stated that the appellant should have secured permission from his supervisor
before moving the coils. IAF, Tab 14 at 35. J.G. explained that the appellant
removed the coils from where they had been located on a Sunday and that
removal of the coils “was not his tasking on that day.” Id. at 36. The appellant
averred otherwise, presenting testimony from a coworker that moving scrap
materials to the recycling area was part of his job. IAF, Tab 19 at 7.
¶12 On review, the appellant challenges several of the administrative judge’s
findings of fact. PFR File, Tab 23 at 10-18. The most critical of those findings,
which we consider here, is whether an agency security guard, F.D., saw the coil
pieces in the van before the appellant left the post to purchase gas. Id. at 11-15.
The administrative judge found it more likely than not that F.D. saw the coils in
the van, ID at 12 n.2, which supported an inference that the appellant removed the
coils from the facility when he left. In contrast, the appellant asserted that he left
the coils in the lay down yard prior to leaving the post and that the coils were
taken from the lay down yard by unknown persons before he returned later that
day. ID at 14.
¶13 The appellant now argues that the administrative judge failed to apply the
Hillen factors in determining which of the conflicting accounts was true. PFR
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File, Tab 23 at 11-15. To resolve credibility issues, an administrative judge must
identify the factual questions in dispute, summarize the evidence on each disputed
question, state which version he believes, and explain in detail why he 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.
¶14 F.D. was one of the investigators tasked with surveilling the appellant on
February 23, 2014. IAF, Tab 22 at 8-9. At about 1:26 p.m., he walked over and
approached the parked van that the appellant was using and looked in the rear
window, where he spotted several dark metal rectangular objects stacked in the
cargo bay. IAF, Tab 19 at 64-65; HCD (May 7, 2015) (testimony of F.D.). F.D.
testified that the objects “looked like car radiators”; were “dull,” “flat,” and
“dirty” in appearance; and seemed to be made of oxidized aluminum.
HCD (May 7, 2015) (testimony of F.D.). In recounting F.D.’s testimony, the
administrative judge concluded that “the precise metallurgy of the coils is less
important than the uniformly consistent words ‘discolored,’ ‘dark,’ and ‘metallic’
combined with the photographs [of the coil pieces] provided by [K.T.],” and that
the agency established by preponderant evidence that F.D. had seen the coils in
the van. ID at 12 n.2.
¶15 The appellant asserts that F.D. was unable in his testimony to positively
identify the coil pieces in the van despite having seen photographs of them, IAF,
Tab 4 at 152-54, and that he testified that the items he saw were made of oxidized
aluminum, whereas the coil pieces were made of copper, PFR File, Tab 23 at 11‑
13.
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¶16 The administrative judge, however, conducted a proper Hillen analysis of
the testimony. The administrative judge did not ignore F.D.’s refusal to state
with certainty that he saw the coil pieces in the van. Instead, he reasonably
considered the significant consistency between the testimony of F.D. and K.T.,
and the photographs of the coil pieces in the record. ID at 12 n.2; Hillen,
35 M.S.P.R. at 458 (holding that the administrative judge should consider the
consistency of the witness’s testimony with other evidence). He also pointed out
that the appellant admitted to placing the coils in the van. ID at 12. We
additionally note that, because F.D. was retired at the time of the hearing, he had
nothing to gain or lose from testifying truthfully. HCD (May 7, 2015) (testimony
of F.D.). On the other hand, the administrative judge found much of the
appellant’s account of the events of February 23, 2014, to be inconsistent and
improbable, and some of his behavior to be inexplicable. ID at 15-17; Hillen,
35 M.S.P.R. at 458 (holding that the administrative judge should consider the
inherent improbability of the witness’s version of events and the contradiction of
the witness’s version of events with other evidence). The administrative judge
thus reasonably concluded that F.D. saw the coils in the back of the van.
¶17 Further, the administrative judge reasonably found that the appellant
removed the coils from agency property without authorization. ID at 17. The
appellant did not deny that he was under surveillance on February 23, 2014. He
stipulated that he moved the coil pieces to the exterior wall of Building 139 using
an electric cart and later returned to that building driving an agency van to
remove the coils. IAF, Tab 27 at 5. He did not dispute that security personnel
saw him on surveillance video driving the van to various locations on post and
leaving the post at 1:40 p.m. 3 IAF, Tab 22 at 8-10, Tab 34 at 4. The appellant
3
The agency used the appellant’s cellular phone records to establish the time of his
departure. IAF, Tab 34 at 4. Employees were required to contact security to open the
gate when they entered and exited the post. HCD (May 7, 2015) (testimony of
M.D., F.D.).
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admitted that the coils were in his possession until at least 11:54 a.m. HCD
(May 8, 2015) (testimony of appellant). He declined to affirmatively testify that
he removed the coils from the van before leaving the facility, and he could not
recall the precise time that he took the coils to the lay down yard. IAF, Tab 4
at 168, 182; HCD (May 8, 2015) (testimony of appellant).
¶18 In contrast, F.D. saw items that resembled radiator fins in the van at
1:26 p.m. HCD (May 7, 2015) (testimony of F.D.). The van was under the
surveillance of security personnel at various times between 1:26 p.m. and
1:40 p.m., when the appellant left the post. HCD (May 7, 2015) (testimony of
F.D., M.D.). At 2:55 p.m., the coils were not in the lay down yard, where the
appellant claimed to have taken them. IAF, Tab 22 at 10. The agency had no
record of any submission of scrap copper for recycling during the relevant time
period. HCD (May 7, 2015) (testimony of D.G., A.K.). It is thus reasonable to
infer that the appellant removed the coils when he left the post to purchase fuel.
Accordingly, we find that the administrative judge considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions on
credibility. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997);
Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
(1987). We will not disturb the findings of fact.
¶19 The appellant also argues that the administrative judge improperly deferred
to the agency’s penalty selection. PFR File, Tab 23 at 18-24. He asserts that the
deciding official, J.G., based his decision on K.T.’s report that F.D. had seen the
coils in the van and that F.D.’s testimony did not support such a conclusion. Id.
at 19. Further, he asserts J.G. did not testify that he considered what the penalty
should be if only one specification were sustained. Id. The appellant additionally
argues that J.G. cited the unproven allegations upon which Specifications 1
through 3 were based as evidence of his guilt, suggesting that he had moved the
coil pieces around the post to prepare for the ultimate act of removing them. Id.
at 20.
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¶20 However, F.D.’s reluctance to state definitively that he saw the coils in the
van does not devalue his hearing testimony or any information he offered K.T.
during the investigation. F.D. testified that he saw a stack of weathered metal
fins in the van, and both K.T. and the administrative judge inferred that the fins
were the coil pieces. 4 ID at 12 n.2; HCD May 7, 2015 (testimony of F.D., K.T.).
As for J.G.’s reliance on the evidence underlying Specifications 1 through 3,
much of that information is also part of the factual predicate for Specification 5.
As for the appellant’s assertion that the single sustained specification justified a
lesser penalty, we note that an agency only need prove a single specification of a
charge for that charge to be sustained. Burroughs v. Department of the
Army, 918 F.2d 170, 172 (Fed. Cir. 1990).
¶21 The appellant additionally asserts that J.G. failed to properly weigh the
Douglas factors, especially mitigating factors such as his consistently satisfactory
performance evaluations; 13-year tenure with the agency, awards, pay increases,
and promotion; and the fact that no disciplinary action had been taken against him
since 2006. PFR File, Tab 23 at 21-24; Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981). He further asserts that J.G.’s
assessment of his rehabilitation potential was based on false or unsubstantiated
allegations and that he did not clearly explain why rehabilitation was
impossible. Id. at 22.
¶22 The record shows that the proposing official set forth a thorough analysis of
the Douglas factors in the proposal notice and that J.G. considered and adopted
this analysis in full. IAF, Tab 4 at 43-44, 114-18. The proposing official
specifically considered as mitigating factors the appellant’s past work record,
including length of service, performance on the job, ability to get along with
fellow workers, and dependability. Id. at 116, 118. He found that the mitigating
factors were outweighed by the aggravating factors, including the nature and
4
K.T. testified that the items F.D. saw were “consistent with” what a person examining
the air conditioning coils might see. HCD (May 7, 2015) (testimony of K.T.).
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seriousness of the offense and the appellant’s job level and type of
employment. Id. at 114-16. He also noted the clarity with which the appellant
was on notice regarding the importance of honesty and integrity in performing the
duties of his position, and he considered an incident of prior discipline involving
dishonest behavior. Id. at 114-17. He explained that he considered lesser
penalties, but did not find one that would be sufficient to correct the appellant’s
behavior. Id. at 118. Accordingly, based on our review of the record, we
conclude that the agency considered all of the relevant factors and exercised
management discretion within tolerable limits of reasonableness. 5 Douglas,
5 M.S.P.R. at 306.
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 request to the
court at the following address:
U.S. 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
5
The appellant also alleges that, because he did not remove Government property
without authorization, there was no nexus between the penalty and the efficiency of the
service. PFR File, Tab 23 at 19. He bases this argument on the fact that his job duties
often required him to transport recyclable materials to the scrap or lay down yards. Id.Although the appellant was allowed to transport these items on post, however, he
was not allowed to remove them without authorization. IAF, Tab 14 at 50-52. He thus
failed to act with integrity regarding the Government property in his care. Cf.
Mertins v. Department of the Navy, 61 M.S.P.R. 157, 159 (1994) (finding that removal
was a reasonable penalty for unauthorized possession of Government property, where
the employee took seemingly surplus items without making any serious inquiry
regarding their ownership).
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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 U.S. 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 U.S. 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.