Hardison v. Opm , 625 F. App'x 531 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CALVIN DONNEL HARDISON,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2015-3082
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0731-14-0552-I-1.
______________________
Decided: August 5, 2015
______________________
CALVIN DONNEL HARDISON, Washington, DC, pro se.
GREGG PARIS YATES, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., DEBORAH
A. BYNUM.
______________________
Before LOURIE, BRYSON, and O’MALLEY, Circuit Judges.
2 HARDISON v. OPM
PER CURIAM.
Calvin Donnel Hardison (“Hardison”) appeals from
the decision of the Merit Systems Protection Board (the
“Board”), which affirmed the decision of the Office of
Personnel Management (“OPM”) to separate Hardison
from Federal service, cancel his eligibilities, and debar
him from competition for or appointment to any covered
position for three years. See Hardison v. Office of Pers.
Mgmt., No. DC-0731-14-0552-I-1, 2014 WL 7045075(M.S.P.B. Dec. 10, 2014) (“Decision”). Because the Board
did not err in affirming OPM’s decision, we affirm.
BACKGROUND
From June 2012 to April 2013, Hardison was em-
ployed by Adrian L. Merton, Inc. (“ALM”) as a laborer.
On April 24, 2013, he was involuntarily terminated from
employment for excessive absences.
On April 29, 2013, Hardison submitted Form OF 306,
Declaration for Federal Employment, as part of his appli-
cation for employment with the Federal government.
Question 12 of that form asks:
During the last 5 years, have you been fired from
any job for any reason, did you quit after being
told that you would be fired, did you leave any job
by mutual agreement because of specific prob-
lems, or were you debarred from Federal employ-
ment by the Office of Personnel Management or
any other Federal agency? If “YES,” use item 16
to provide the date, an explanation of the problem,
reason for leaving, and the employer’s name and
address.
Resp’t’s App. 20. Hardison answered “no” to that question
without revealing his involuntary termination from ALM.
Id. He signed the form manually and certified that his
answers were “true, correct, complete, and made in good
faith.” Id. at 21.
HARDISON v. OPM 3
On June 2, 2013, the Department of the Interior ap-
pointed Hardison to a temporary position as a Mainte-
nance Worker with the National Park Service (“NPS”).
On June 3, 2013, during new-employee in-processing, he
signed Form OF 306 a second time without changing his
answer to Question 12. Id. at 37–38. In September 2013,
Hardison submitted Form OF 306 to apply for another
Federal position; he again answered “no” to Question 12
and signed the form a third time. Id. at 40–41.
As part of the Federal hiring process, NPS requested
a background investigation. In October 2013, OPM
notified Hardison that its investigation uncovered “a
serious question concerning [his] suitability for Federal
service” relating to his “[m]isconduct or negligence in
employment” with ALM and his “[m]aterial, intentional
false statement” on Form OF 306. Id. at 42. He respond-
ed to those charges. After considering his responses,
OPM decided to separate him from Federal service, cancel
his eligibilities, and debar him from competition for or
appointment to any covered position for three years. Id.
at 58. On March 25, 2014, Hardison was separated from
Federal service. He then appealed to the Board.
The Administrative Judge (“AJ”) issued an initial de-
cision affirming OPM’s decision. Decision at 1. First, the
AJ found that Hardison engaged in misconduct or negli-
gence in employment because it was undisputed that he
was terminated from ALM for excessive absences and his
absenteeism constituted employment misconduct. Id. at
6. Second, the AJ noted that Hardison did not challenge
the finding that he failed to disclose his termination from
ALM on Form OF 306; instead, he argued that the mis-
take was unintentional. Id. at 9. The AJ found, however,
that he “was on notice and was told to complete a new OF
306 with new, updated information” on June 3, 2013, id.
at 9–10, that he signed the form physically “with wet
signature” on all three occasions, id. at 10, and that “his
omission of a significant fact (not just omission, but
4 HARDISON v. OPM
affirmative statement to the contrary) relating to termi-
nation from employment was repeated multiple times,” id.
The AJ thus agreed with OPM that Hardison’s failure to
correct and update Form OF 306 was intentional. Id.
Accordingly, the AJ found that OPM proved both charges
by a preponderance of the evidence.
Hardison did not file a petition for review by the full
Board, and the AJ’s decision thus became the final deci-
sion of the Board. Hardison timely appealed from the
Board’s decision to this court. We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We may only set aside the Board’s
decision if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). “Substantial
evidence” is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Dickey
v. Office of Pers. Mgmt., 419 F.3d 1336, 1339 (Fed. Cir.
2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)).
Hardison argues that he did not intentionally falsify
his answer to Question 12 on Form OF 306. He main-
tains that the form was completed before his termination
from ALM and that he then used the same form for vari-
ous job applications. He asserts that his failure to update
the form was merely an oversight. The government
responds that substantial evidence supports the Board’s
finding that Hardison intentionally omitted his adverse
employment history on Form OF 306. Additionally, the
government contends that OPM’s action was also based
on misconduct or negligence in employment that Hardison
does not challenge on appeal.
HARDISON v. OPM 5
We agree with the government that substantial evi-
dence supports the Board’s finding that Hardison made
material, intentional false statements on Form OF 306. It
is undisputed that, after he was involuntarily terminated
from employment with ALM, Hardison signed and sub-
mitted Form OF 306 on three occasions without updating
the form to reveal the involuntary termination. Intent to
deceive may be proven directly or derived from circum-
stantial evidence. Naekel v. Dep’t of Transp., 782 F.2d
975, 978 (Fed. Cir. 1986). As the Board found, on each of
those occasions, he manually signed the form with a “wet”
signature and certified that his answers were true, cor-
rect, complete, and made in good faith. Decision at 10.
The Board found that those certifying signatures support
a finding that he signed the forms with the intent to
conceal his adverse employment history. Id. Moreover,
substantial evidence supports the Board’s finding that
Hardison was on notice that he ought to update Form OF
306 with new information and certify that it was correct
at the time he entered service on June 3, 2013. Id. at 9–
10. We therefore conclude that substantial evidence
supports the Board’s finding that Hardison intentionally
omitted his adverse employment history with ALM on
Form OF 306. The Board thus did not err in sustaining
OPM’s charge of material, intentional false statement.
Additionally, we agree with the government that
OPM’s decision was also supported by the separate charge
of misconduct or negligence in employment for excessive
absences, which Hardison does not challenge on appeal.
As the Board noted, there are few things more basic to the
employer-employee relationship than the employee’s duty
to report to work as expected. Id. at 6. The Board thus
did not err in finding that Hardison’s excessive absentee-
ism at ALM constituted employment misconduct. We
therefore conclude that the Board correctly affirmed
OPM’s decision on this additional ground.
6 HARDISON v. OPM
CONCLUSION
We have considered Hardison’s remaining arguments,
but find them unpersuasive. For the foregoing reasons,
the decision of the Board is affirmed.
AFFIRMED
COSTS
No costs.