Truxes v. Department of the Air Force , 168 F. App'x 944 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3386
WILLIAM W. TRUXES,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
___________________________
DECIDED: February 14, 2006
___________________________
Before LOURIE, RADER, and DYK, Circuit Judges.
RADER, Circuit Judge.
The Merit Systems Protection Board (Board) affirmed the Department of the
Air Force’s (Agency) decision to remove William W. Truxes from his position as an
Electronics Engineer in the Software Engineering Division at the Hill Air Force Base.
See Truxes v. Dep’t of Air Force, DE-0752-04-0118-I-1 (M.S.P.B. Oct. 21, 2004) (Board
Decision). Finding no reversible error, this court affirms.
BACKGROUND
On August 19, 2003, Mr. Truxes was tasked with ensuring that certain software
programs could be tested on an automated testing system the Agency had adopted. Id.
at 3. Mr. Truxes was instructed to complete the project by October 9, 2003, and to
provide weekly progress updates to his direct supervisor, Mr. Chuck McPhee. Id.
Despite these instructions, Mr. Truxes did not provide any progress updates to
Mr. McPhee, nor did he complete the project on time. Id. Thus, Mr. McPhee
reassigned the project to another engineer and initiated a review of the work Mr. Truxes
billed to the project. Id.
Ultimately, Mr. McPhee concluded that Mr. Truxes’s work on the project involved
simple cosmetic changes, inconsistent with the approximately 170 hours he billed to the
project. Id. at 3-4. The large number of hours billed by Mr. Truxes was particularly
bothersome in light of a lower grade engineer’s ability to complete the project from
scratch in less than 40 hours. Mr. McPhee thus issued a Notice of Proposed Removal
to Mr. Truxes for: (1) misrepresenting the hours spent on assigned work; and (2) failing
to carry out assigned work.
Mr. Truxes did not respond to the Notice of Proposed Removal, which was
subsequently adopted by the Deciding Official at the Agency. However, Mr. Truxes did
appeal the Agency’s ultimate removal decision to the Board, but was unsuccessful in
convincing the Board to overturn it. Id. at 8.
DISCUSSION
This court affirms a decision of the Board unless it is arbitrary, capricious, an
abuse of discretion, not in accordance with the law, or unsupported by substantial
evidence. See 5 U.S.C. § 7703(c) (2000); Marino v. Office of Pers. Mgmt., 243 F.3d
1375 (Fed. Cir. 2001).
In this case, Mr. Truxes alleges that substantial evidence does not support the
Board’s decision with respect to either charge. Mr. Truxes first argues that he did not
make significant changes to the code because he sought instead a hardware remedy
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that, if it had been successful, would have made it unnecessary to make changes in a
large number of programs (a “global” solution). Board Decision, slip op. at 4. When the
Agency did not discredit his “global” solution before the Board, Mr. Truxes assumed
“[he] has been punished for showing initiative.” Appellant’s Pet. For Review & Req. To
Reopen 4 (Nov. 23, 2004). To the contrary, the administrative judge properly rejected
Mr. Truxes’s “global” solution argument in light of the evidence of record:
First, [the testimony of record demonstrated that Mr. Truxes] was never
given the assignment to seek a global resolution. Second, [Mr. Truxes]
admits that he never sought permission to accomplish such an
assignment and never apprised . . . any supervisor of his more global
approach to the problem. . . . Third, and perhaps most significantly, the
record is devoid of any work product establishing that he spent significant
time in search of such a global resolution. . . . Finally, I find speculative,
at best, [Mr. Truxes’] assertion that confirming materials must have been
taken by unknown parties (and for unknown reasons) from the library
where he had deposited them.
Id. at 6.
Mr. Truxes next argues that “[the] preponderance of the evidence does not show
that [he] intentionally failed to complete the project or intentionally misrepresented his
hours.” Appellant’s Pet. For Review & Req. To Reopen 3 (Nov. 23, 2004) (emphasis
added). This argument fails for at least two reasons. First, the charge of failing to carry
out the work as directed does not contain an intent requirement. As summarized by the
administrative judge:
In sum, the findings . . . show that the agency has proven the failure-to-
complete-the-assignment-within-the-allotted-hours charge by a preponder-
ance of the evidence. This is so because the agency has established that
a clear assignment/instruction was given, it was reasonable to expect [Mr.
Truxes] to complete the assignment within the 30-day period, and he
failed to do so.
Board Decision, slip op. at 6 (emphasis added). Thus, Mr. Truxes’s intent is immaterial
as to at least one of the two charges.
05-3386 3
Second, the evidence of record clearly supports the conclusion that Mr. Truxes
was aware of the project requirements, that he did not complete the project within the
allotted hours, and that he intentionally misrepresented the number of hours he spent
working on the project. Specifically, Agency witnesses testified that:
1) over [their] tenure [Mr. Truxes] had shown himself to be a
knowledgeable and competent journeyman engineer; 2) assignment no.
0059 was a moderate to simple task that could easily be accomplished in
30 days; 3) [Mr. Truxes’] work product revealed that he had made only
minor/cosmetic changes to the . . . software that should have taken less
than one day to accomplish; 4) [Mr. Truxes] never indicated that he was
having any problems with the project; and 5) the new GS-7 grade level
engineer to whom assignment no. 0059 was reassigned finished the
assignment within 40 work hours.
Board Decision, slip op. at 5-6 (citations to the record omitted). Notably, the
administrative judge found these Agency witnesses more credible than Mr. Truxes.
King v. Dep’t of Health & Human Serv., 133 F.3d 1450, 1452 (Fed. Cir. 1998) (“an
evaluation of witness credibility is within the discretion of the board,” [and therefore],
“such evaluations are ‘virtually unreviewable’ on appeal.”).
Based on this testimony and the lack of evidence demonstrating Mr. Truxes
worked on a “global” solution, the record suggests that he did not complete the project
within the allotted hours and could not reasonably have spent the 170 hours he billed to
the project. In addition, the record supports the inference that Mr. Truxes overstated the
hours spent on the project. After all, the junior engineer took only 40 hours to finish the
project. Thus, substantial evidence supports the Board’s conclusion on both charges.
05-3386 4