Timothy Samuels v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY JAMES SAMUELS, DOCKET NUMBER
Appellant, NY-0752-14-0293-I-1
v.
DEPARTMENT OF VETERANS DATE: February 24, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Damon L. Burns, Brooklyn, New York, for the appellant.
Christopher P. Richins, Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erro neous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. For the reasons set forth below, we DENY the petition for review,
VACATE the initial decision’s notice of mixed-case appeal rights, and otherwise
AFFIRM the initial decision.
BACKGROUND
¶2 The agency removed the appellant, a Housekeeping Aid, WG-3566-02, for
absence without official leave (AWOL), failure to follow proper leave
procedures, and conduct unbecoming a Department of Veterans Affairs employee.
Initial Appeal File (IAF), Tab 8, Subtabs 4a, 4b, 4d. The basis of the agency’s
removal action began with a July 3, 2013 altercation involving the appellant and
two other agency employees. Id., Subtab 4d at 4, Subtab 4g at 16-18. Shortly
after the altercation, agency officials separated the three e mployees pending the
results of an internal investigation and directed the appellant , who was assigned
to the New York campus (referred to as the Manhattan campus during the
proceedings below), to report for a detail to the agency’s Brooklyn campus. Id.,Subtab 4h at 1; IAF, Tab 19, Appellant’s Exhibit 1; Hearing Compact Disc (HCD)
(testimony of the Assistant Chief of the Environmental Management Service) .
The agency also referred the matter to the U.S. Attorney for the Southern District
of New York for criminal proceedings. IAF, Tab 8, Subtab 4g at 18, Tab 28
3
at 10. 2 The appellant reported for duty at the Brooklyn campus for 1 day. IAF,
Tab 8, Subtab 4g at 12, Tab 12 at 3. In September 2013, the agency proposed the
appellant’s removal for AWOL, failure to follow proper leave procedures, and
disorderly conduct. IAF, Tab 8, Subtab 4f. In October 2013, the appellant
provided an oral reply to the proposal. Id., Subtab 4e. In January 2014, the
agency rescinded the first proposal and then issued a second proposal to remove
the appellant with additional specifications of AWOL and failure to follow proper
leave procedures, and a revised charge of conduct un becoming a Department of
Veterans Affairs employee. Id., Subtab 4d. The appellant did not reply to the
second proposal, and the agency issued a decision sustaining the charges and
removing him, effective May 28, 2014. Id., Subtab 4b. The appellant timely
filed a Board appeal challenging the removal action and alleging that the union
failed to properly represent him. 3 IAF, Tab 1 at 6.
¶3 Following a hearing, the administrative judge issued an initial decision
sustaining two of the three charges and affirming the penalty of removal. IAF,
Tab 34, Initial Decision (ID). Specifically, the administrative judge found that
the agency had proven by preponderant evidence the charges of AWOL and
conduct unbecoming. ID at 17, 30. The administrative judge found that the
agency had not provided the appellant with the leave procedure that he was
required to follow, particularly during the detail that he began on July 8, 2013, or
2
The recording of the second day of the hearing became inaccessible, and the
administrative judge issued an order reopening the record to set forth the relevant
testimony from the second day of the hearing and inquired whether the parties wished
to stipulate to the testimony. IAF, Tab 28. The agency did so by pleading, and the
appellant did so during a telephonic conference. IAF, Tabs 29, 33.
3
In his initial appeal, the appellant also indicated that he had been denied a
within-grade increase and that the agency had failed to restore, reemploy, or reinstate
him; however, he failed to respond to the administrative judge’s orders directing him to
show that the Board has jurisdiction over these claims, and the administrative judge
deemed the claims waived. IAF, Tab 1 at 4; Tabs 4-6, 9; Tab 15 at 3; Tab 16; Tab 34,
Initial Decision at 1 n.1. The appellant does not raise these matters on review or assert
that the administrative judge erred in deeming them waived.
4
advised him of the consequences of failing to follow the leave procedure, and
concluded that the agency had not proven the charge of failure to follow pr oper
leave procedures. ID at 19-28. The administrative judge further found that,
although the appellant had not initially raised any affirmative defenses, certain
statements in his testimony could be construed as affirmative defenses. ID at 31
n.34. She then found that the appellant had not proven any affirmativ e defenses
of discrimination, harmful procedural error, or due process violations. ID
at 30-44. The administrative judge concluded that, concerning the two remaining
charges, the agency had established a nexus between the misconduct an d the
efficiency of the service and that the penalty of removal did not fall outside the
bounds of reasonableness, and she sustained the removal. ID at 45, 50-51.
¶4 The appellant has timely filed a petition for review in which he generally
argues that the agency did not establish its burden of proof and further argues that
(1) the agency was negligent in presenting “a full discovery” and did not present
all of the evidence; (2) he was the victim of discrimination based on a prior
criminal charge; (3) management failed to conduct a proper investigation; (4) he
fully complied with the agency’s instructions and was not assigned to a
department or supervisor; (5) he was present at work; and (6) the agency did not
follow the Master Agreement with the appellant’s union (Master Agreement).
Petition for Review (PFR) File, Tab 1 at 4. The agency has filed a response
opposing the petition. PFR File, Tab 3. As set forth below, we find each of the
appellant’s arguments to be without merit.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not established a basis on which to reverse the administrative
judge’s findings that the agency proved two of its three charges and that the
penalty was within the bounds of reasonableness.
¶5 On review, the appellant appears to challenge the administrative judge’s
finding that the agency proved its charge of AWOL. PFR File, Tab 1 at 4. He
alleges that he fully complied with the instructions from management at the
5
agency’s Manhattan campus, but he was not assigned to a department or
supervisor for proper management. Id. He further alleges that he was present at
work, presumably on the dates the agency charged him with being AWOL, and
has proof of his presence. Id. The appellant appears to be referring to his
contention below that when he reported to the agency’s Brooklyn campus,
management there sent him back to the Manhattan campus, but the Manhattan
campus management would not let him work. IAF, Tab 1 at 6, HCD (testimon y
of the appellant). The argument that the appellant was not assigned a supervisor
at the Brooklyn campus was not one that the appellant argued below. Moreover,
by his own testimony, he reported to a supervisor at the Brooklyn campus who
provided him with work on the first day, and we find his argument unconvincing
that he was absent because he was not assigned to a supervisor . HCD (testimony
of the appellant). The appellant’s argument that he complied with the Manhattan
campus management’s instructions was carefully considered and rejected by the
administrative judge in finding that the agency had proven its charge of AWOL.
ID at 28-30. Finally, the appellant did not provide evidence with his petition to
prove his presence at the workplace. 4 PFR File, Tab 1 at 4.
¶6 We discern no reason to disturb the administrative judge’s findings that the
agency proved its charges of AWOL and conduct unbecoming, as the record
reflects that the administrative judge considered the evidence as a whole, drew
appropriate inferences from the evidence, and made reasoned conclusions on the
issue of credibility. ID at 7-30; see Clay v. Department of the Army,
123 M.S.P.R. 245, ¶¶ 6-8 (2016) (finding no reason to disturb the administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on the issue of credibility); Broughton
4
The Office of the Clerk of the Board rejected two filings submitted by the appellant
postmarked after the time to file a reply had passed and notified him that he must
request leave to file an additional pleading. PFR File, Tabs 4, 6. To date, the appellant
has not requested leave from the Office of the Clerk of the Board.
6
v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987)
(same). The appellant has not challenged the administrative judge’s findings
sustaining the charge of conduct unbecoming, concluding that the agency proved
a nexus between the misconduct and the efficiency of the service, and concluding
that the penalty was within the bounds of reasonableness, and we see no reason to
revisit these findings on review.
The appellant has not established a basis on which to reverse the administrative
judge’s findings addressing his allegations of harmful procedural error and due
process violations.
¶7 On review, the appellant alleges that the agency did not present “a full
discovery,” did not present all of the evidence to make a proper decision, and
failed to properly investigate events. PFR File, Tab 1 at 4. Based on the
appellant’s arguments below, it appears that he is asserting that the agency did
not fully investigate the incident that served as the basis of the charge of conduct
unbecoming and did not provide him with all of the materials generated from the
investigation. HCD (testimony of the appellant). He further alleges that the
agency did not follow procedures as delineated in the Master Agreement between
the agency and the appellant’s union. PFR File, Tab 1 at 4. Although the
appellant has not specified which procedures the agency is alleged to have failed
to follow, he stated below that the agency did not pr ovide the union with
information it requested regarding the investigation of the July 3, 2013 incident,
did not inform the union of his detail, and did not bargain in good faith with the
union. IAF, Tab 12 at 3, Tab 19, Appellant’s Exhibit 2; ID at 38-43.
¶8 The administrative judge addressed these arguments in the initial decision
under a harmful procedural error analysis. ID at 38-43. The record reflects that
the appellant did not expressly raise these issues as affirmative defenses, and the
administrative judge initially did not identify them as such, but following the
hearing, she liberally construed them as affirmative defenses and found that the
7
appellant had not proven harmful procedural error or a due process violation.
IAF, Tab 15, ID at 38-43.
¶9 The administrative judge did not notify the appellant of his burden of proof
and the elements to show harmful procedural error or a due process violation
prior to issuing the initial decision; however, this error was not prejudicial to the
appellant’s substantive rights because the initial decision was sufficient to place
the appellant on notice of his burden to prove harmful procedural error and due
process violations. ID at 36, 38; see Sabio v. Department of Veterans Affairs,
124 M.S.P.R. 161, ¶ 6 n.2 (2017) (noting that, although the appellant was not
notified of the correct standard and burden of proof applicable to her affirmative
defense, the initial decision set forth the correct standard and provided her with
notice and an opportunity to meet her burden on review); Caracciolo v.
Department of the Treasury, 105 M.S.P.R. 663, ¶ 11 (2007) (holding that the
failure to provide the appellant with proper notice on what is required to establish
an appealable jurisdictional issue can be cured if the initial decision itself puts the
appellant on notice of what she must do to establish jurisdiction so as to afford
her the opportunity to meet her burden for the first time on review) , overruled on
other grounds by Brookins v. Department of the Interior , 2023 MSPB 3.
¶10 The appellant’s petition does not explain why the administrati ve judge’s
reasoning is incorrect; nor does he allege that the administrative judge failed to
consider the record evidence. PFR File, Tab 1 at 4. A petition for review must
state a party’s objections to the initial decision, including all of the party’s legal
and factual arguments, and must be supported by specific references to the record
and any applicable laws or regulations. 5 C.F.R. § 1201.114(b); see Rumsey v.
Department of Justice, 120 M.S.P.R. 259, ¶ 11 (2013) (citing Weaver v.
Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (stating that before the
Board will undertake a complete review of the record, the petitioning party must
explain why the challenged factual determination is incorrect and identify the
specific evidence in the record that demonstrates the error) . We agree with the
8
administrative judge’s well-reasoned findings that the appellant failed to establish
that the agency committed harmful procedural error or due process violations and
see no reason to disturb these findings. See Clay, 123 M.S.P.R. 245, ¶¶ 6-8.
The appellant’s claim of discrimination does not identify a protected basis under
5 U.S.C. § 7702, thus we vacate the notice of mixed-case appeal rights in the
initial decision.
¶11 On review, the appellant also argues that he was the victim of
discrimination based on a prior criminal charge. PFR File, Tab 1 at 4. The
appellant has not identified the charge to which he refers; however, based on his
arguments below, we surmise that he refers either to the agency’s reporting of the
July 3, 2013 incident to the U.S. Attorney for the Southern District of New York
for criminal proceedings or to a past criminal conviction. The appellant first
alleged at the prehearing conference that he was discriminated against because a
criminal investigation was initiated based on the July 3, 2013 incident and alluded
to a past criminal history. IAF, Tab 15 at 2 n.1, Prehearing Conference Compact
Disc (PCCD) (statement of the appellant). The administrative judge initially did
not identify this argument as a claim of discrimination because the appellant did
not refer to a class protected from discrimination. Prior to issuing the initial
decision, the administrative judge did not notify the appellant of his burden to
prove discrimination. IAF, Tab 15, ID at 6 n.8, 31 n.34. However, based on the
appellant’s hearing testimony, she treated the appellant’s claim as one of
discrimination and found that the appellant had not proven an affirmative defense
of discrimination. ID at 30-35.
¶12 Upon reviewing the record, we find that the appellant did not raise a claim
of discrimination identifying a basis protected under 5 U.S.C. § 7702(a)(1)(B),
thus it was unnecessary for the administrative judge to analyze his claim under a
discrimination framework or to afford the appellant notice of mixed-case appeal
rights. PCCD (statement of the appellant), HCD (testimony of the appellant); see
Guzman v. Department of Veterans Affairs, 114 M.S.P.R. 566, ¶ 20 (2010)
9
(holding that the appellant did not allege discrimination under the provisions in
5 U.S.C § 7702(a)(1)(B) and was not entitled to have received mixed-case appeal
rights). Accordingly, we vacate the initial decision’s notice of mixed-case appeal
rights.
Any claim of a due process violation or harmful error relating to the agency’s
reliance on the appellant’s criminal proceedings is without merit.
¶13 To the extent the appellant is alleging that he was denied due process or that
the agency committed harmful procedural error when it investigated and referred
the July 3, 2013 incident to the U.S. Attorney for the Southern District of
New York for criminal proceedings, we find no evidence of error. The deciding
official and the appellant discussed the criminal proceedings during the
appellant’s oral reply to the first proposal to remove him. IAF, Tab 8, Subtab 4e.
The agency also provided the appellant, after his oral reply, with the investigative
report referencing the criminal proceedings and allowed him an opportunity to
respond to it after issuing the second proposal to remove him. HCD (testimony of
the appellant); IAF, Tab 8, Subtab 4d at 4, Subtab 4g at 18. We find that the
appellant was notified of the information the agency considered that concerned
the criminal proceeding and that he had an opportunity to reply to it prior to the
agency issuing the decision to remove him; thus, we find that there is no evidence
he was denied due process. See Stone v. Federal Deposit Insurance Corporation,
179 F.3d 1368, 1376 (Fed. Cir. 1999) (holding that introducing new and material
information to the deciding official can undermine an employee’s due process
guarantee of notice and the opportunity to respond). There also is no evidence
that any of the agency’s actions related to the criminal investigation constituted a
failure on the agency’s part to follow its procedures; accordingly, we find that the
appellant has not shown harmful procedural error under 5 U.S.C. § 7701(c)(2)(A).
¶14 To the extent the appellant is alleging that the agency considered a criminal
charge prior to the criminal proceedings originating from the July 3, 2013
incident, we note that at the prehearing conference, he vaguely alluded to a prior
10
charge as the reason the agency initiated a criminal investigation , but he did not
otherwise pursue this allegation. PCCD (statement of the appellant); HCD
(testimony of the appellant). Although the record does not reflect that the
deciding official considered a prior criminal charge in her decision to remove the
appellant, there is one mention of the appellant’s criminal history in the record,
located in the investigative report of the July 3, 2013 incident. IAF, Tab 8,
Subtab 4g at 22. The agency provided the appellant with this report and an
opportunity to respond to it, and there is no indication that the agency failed to
follow its procedures by including his criminal background in the investigative
report; accordingly, the appellant has not established that the agency erred
regarding its use of his prior criminal history. HCD (testimony of the appellant);
IAF, Tab 8, Subtab 4d at 4; see 5 U.S.C. § 7701(c)(2)(A); Stone, 179 F.3d
at 1376.
¶15 Accordingly, we deny the appellant’s petition for review, vacate the initial
decision’s notice of mixed-case appeal rights, and affirm the initial decision as
modified.
NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
5
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.
11
regarding which cases fall within their 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
12
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. ____ , 137 S. Ct. 1975 (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, o r 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
13
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 comme rcial 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. 6 The court of appeals must receive your petition for
6
The original statutory provision that provided for judicial re view 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.
14
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.
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.