Claudia L. Washington v. Department of the Army ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLAUDIA L. WASHINGTON, DOCKET NUMBER
Appellant, AT-0752-15-0138-I-1
v.
DEPARTMENT OF THE ARMY, DATE: September 21, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John M. Brown, Esquire, Augusta, Georgia, for the appellant.
Christopher M. Kenny, Fort Gordon, Georgia, 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
sustained her removal. 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 the law to the facts of the case; the administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See 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. 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).
BACKGROUND
¶2 The appellant was employed as a Nursing Assistant. Initial Appeal File
(IAF), Tab 5 at 8. The agency proposed her removal based upon a charge of
“False Statements (Falsified Information on a Request for Advanced Sick Leave
Form).” Id. at 12-13. The agency alleged that the appellant forged the initials of
her supervisors on a request for advanced sick leave (the request) for an absence
that occurred prior to the request. Id. at 12. The appellant did not submit a reply
to the proposal. See id. at 9. The agency subsequently removed the appellant.
Id. at 8-11. The appellant challenged her removal before the Board, asserting that
the agency falsely accused her of forgery. IAF, Tab 1 at 5. She requested a
hearing. 2 Id. at 2.
¶3 After holding the requested hearing, Hearing Compact Disc (HCD), the
administrative judge issued an initial decision sustaining the appellant’s removal,
IAF, Tab 19, Initial Decision (ID). He found that agency witnesses were more
credible than the appellant and rejected the opinion of the appellant’s handwriting
2
The appellant moved to amend her appeal to include the affirmative defenses of
retaliation for equal employment opportunity (EEO) activity and disability
discrimination. IAF, Tabs 10, 13. The administrative judge granted her requests. IAF,
Tabs 12, 15.
3
expert. ID at 5-11. Based on these credibility determinations, he found that it
was more likely than not that the appellant forged the initials of agency officials
on her request, which constituted a knowing and material false statement made
with the specific intent to deceive. ID at 11. He therefore sustained the charge. 3
Id.¶4 The appellant has filed a timely petition for review in which she challenges
the administrative judge’s finding sustaining the charge. Petition for Review
(PFR) File, Tab 1. She asserts, inter alia, that the Board is not required to defer
to the administrative judge’s credibility determinations because they were based
on the circumstances of the witnesses as opposed to his observations of the
witnesses and because he performed a deficient credibility analysis. Id. at 8-9.
She specifies a variety of deficiencies in the administrative judge’s credibility
analysis and his analysis of the expert testimony. Id. at 9-17. The agency has
responded in opposition to the petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 A charge of false statements is a falsification charge. Parker v. Department
of Veterans Affairs, 122 M.S.P.R. 353, ¶ 10 (2015). To establish a charge of
falsification, the agency must prove by preponderant evidence 4 that the appellant:
(1) supplied wrong information; and (2) knowingly did so with the intention of
(a) defrauding, deceiving, or misleading the agency, and (b) defrauding the
3
After sustaining the charge, the administrative judge found a nexus between the
appellant’s conduct and the efficiency of the service, upheld the removal penalty, and
found that she failed to establish her affirmative defenses of EEO retaliation and
disability discrimination based upon either a failure to accommodate or disparate
treatment. ID at 11-19. On review, the appellant does not challenge these findings,
PFR File, Tab 1, and we see no reason to disturb the initial decision on these matters.
4
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
agency for her own personal gain. 5 Id. (citing Haebe v. Department of
Justice, 288 F.3d 1288, 1305 (Fed. Cir. 2002)). The administrative judge
sustained the charge because he found that it was more likely than not that the
appellant forged the initials of agency officials on the request, which was a
knowing and material false statement made with the specific intent to deceive. ID
at 11.
¶6 The Board will not disturb an administrative judge’s findings when he
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility. See Broughton v. Department of
Health & Human Services, 33 M.S.P.R. 357, 359 (1987). More specifically, when
a hearing was held, the Board will defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, upon the observation
of the demeanor of witnesses testifying at a hearing, because the administrative
judge is in the best position to observe the witnesses’ demeanor and determine
which witnesses were testifying credibly. Haebe, 288 F.3d at 1300-01.
¶7 Through application of the Hillen factors, the administrative judge found
that agency witnesses were more credible than was the appellant. 6 ID at 5. The
administrative judge found that the appellant’s supervisors had a greater
opportunity than did the appellant to observe whether they had signed the
5
Although the administrative judge did not specifically address the factor of personal
gain set forth above, we have reviewed that additional factor and find that it does not
change the outcome of our disposition.
6
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 v. Department of the Army, 35 M.S.P.R. 453,
458 (1987).
5
appellant’s request and that she had not claimed that she saw them sign the
request. Id.; see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458-59
(1987). Concerning prior inconsistent statements, the administrative judge noted
that there were no prior inconsistent statements, but considered the fact that the
appellant gave no prior statements (such as an oral or written response to the
charge) as a factor weighing in favor of the agency in that it suggested that the
appellant had not originally contested the charge. 7 ID at 5-6. Regarding possible
witness bias, the administrative judge found that, contrary to the appellant’s
belief that her supervisors were “out to get her,” any scrutiny she received was
the result of normal managerial obligations regarding time and attendance
policies and neither of her supervisors had any apparent animosity towards her.
ID at 6; see Franco v. Department of Health & Human Services, 32 M.S.P.R. 653,
658 (1987) (finding that, even assuming that some personal dislike existed, the
appellant did not establish that any bias or dislike by his supervisor had any
bearing on her decision to remove him), aff’d, 852 F.2d 1292 (Fed. Cir. 1988)
(Table).
¶8 Next, the administrative judge found that the appellant’s version of events
was contradicted by or inconsistent with other evidence and was inherently
improbable. ID at 6-7, 10. Specifically, the administrative judge found that,
consistent with agency evidence and testimony and contrary to the appellant’s
testimony, it was more likely than not that the appellant tried to bypass agency
procedures to get the request approved. ID at 6-7. Her actions included sending
the request directly to a senior office for approval without the approval of her
7
The appellant challenges the fact that the administrative judge considered that she
gave no prior statements (such as an oral or written response to the charge) as a factor
that weighed in favor of the agency. PFR File, Tab 1 at 13; see ID at 5-6. Because the
administrative judge’s findings otherwise support the conclusion that the agency
witnesses were more credible than was the appellant, notwithstanding his finding
regarding the absence of prior statements, this challenge does not provide a basis for
disturbing the initial decision.
6
supervisors, despite the fact that one of her supervisors told her that she would
not approve the request. Id; see Uske v. U.S. Postal Service, 60 M.S.P.R. 544,
558 (1994) (finding the appellant’s denials not credible when they were
inconsistent with preponderant evidence to the contrary), aff’d, 56 F.3d 1375(Fed. Cir. 1995). The administrative judge also found that the appellant’s version
of events was inherently improbable, including, inter alia, her assertion that, to
cover up an action that would ultimately lead to scrutiny by higher management
(the approval of the leave request), her supervisors denied signing her request
when they had in fact done so. ID at 10; see Christopher v. Department of the
Army, 107 M.S.P.R. 580, ¶ 18 (finding the appellant’s denials inherently
improbable), aff’d, 299 F. App’x 964 (Fed. Cir. 2008). Specifically, the
administrative judge found that: (1) there was no evidence that higher
management was upset about the request; (2) it was unlikely that either, much
less both supervisors, would assume the risk of the possible career consequences
that could result from lying under oath; and (3) it was doubtful that the
supervisors would have suffered severe consequences for improperly approving
the appellant’s request for leave, had they actually approved it. ID at 10.
Conversely, the agency’s version of events—that the appellant forged the
signatures—was not improbable, considering, inter alia, that she had an interest in
getting the leave approved based upon the financial hardship that she faced when
she was not paid for the time she was absent. 8 Id.8
The Board has held, when considering the bias of appellant testimony in a removal
case, that most testimony that an appellant is likely to give, other than admissions, can
be characterized as self-serving but that an appellant’s testimony should not be
discredited solely on that basis. Thompson v. Department of the Army,
122 M.S.P.R. 372, ¶ 25 (2015). Here, the administrative judge did not find bias based
upon the appellant’s financial hardship and interest in contesting her removal, but
instead considered these factors to determine that her story was improbable.
Regardless, the record supports the administrative judge’s finding that the appellant’s
testimony was less credible than that of agency witnesses.
7
¶9 The administrative judge also found, based upon witness demeanor, that the
appellant was less convincing than agency witnesses. ID at 11. Specifically, he
found that the agency witnesses displayed a “very calm, direct, and
straightforward demeanor,” while the appellant’s demeanor was less convincing
due to her “convoluted and improbable explanation” regarding the request. Id.;
see Fernandez v. Department of Agriculture, 95 M.S.P.R. 63, ¶¶ 11-12 (2003)
(deferring to the administrative judge’s credibility determination that was based
upon the appellant’s demeanor while testifying, including, inter alia, that he was
nervous and wavered at times and that his testimony was improbable). Thus,
contrary to the appellant’s assertions on review, we find that the administrative
judge’s credibility findings are based on proper considerations, supported by the
record, and both explicitly and implicitly based on his observations at the
hearing. See ID at 5-11. We therefore will defer to them on review. See Haebe,
288 F.3d at 1300–01.
¶10 The appellant asserts that, although one of her supervisors testified that she
signed a document, the administrative judge improperly substituted his own
opinion for that of her handwriting expert and concluded that the supervisor did
not sign the document. PFR File, Tab 1 at 17. We disagree. The Board has
found that an administrative judge may identify handwriting based upon lay or
expert opinion or upon comparison with other handwriting samples in evidence.
Starr v. U.S. Postal Service, 80 M.S.P.R. 59, ¶ 6 (1998). The administrative
judge may make handwriting comparisons and draw conclusions from them in the
presence of, or in the absence of, an expert opinion. Id. Moreover, an
administrative judge is free to reject the opinion of a witness offered as an expert.
Mitchell v. Department of Defense, 54 M.S.P.R. 641, 644 (1992).
¶11 The handwriting expert opined that it was more likely than not that one
supervisor initialed the leave request at issue and that the other supervisor
definitely initialed the request. IAF, Tab 16 at 5. However, the administrative
judge compared the initials on the request with handwriting examples and other
8
documents from the supervisors and concluded that the initials on the request
were different. ID at 7-9. He therefore rejected the expert’s opinion because it
did not comport with a layman’s observation of the initials in question. ID at 8.
He also found that the expert’s opinion, which was solely based upon the review
of the handwriting samples, was in conflict with other evidence, including, inter
alia, the supervisors’ credible testimony that they had not signed the request. ID
at 9-10. Accordingly, we find that the appellant’s assertion that the
administrative judge substituted his own opinion for that of her handwriting
expert does not provide a basis for disturbing the initial decision because the
administrative judge was free to reject the opinion of the expert. See generally
Miller v. Department of the Navy, 42 M.S.P.R. 10, 14-15 (1989) (finding that the
administrative judge properly accorded greater weight to the testimony of agency
witnesses than that of the appellant’s expert).
¶12 Furthermore, the appellant’s assertion that one of her supervisors testified
to signing a document that the administrative judge concluded she did not sign is
contradicted by the supervisor’s testimony and the evidence of record.
Specifically, the supervisor did not testify that she signed her initials, but instead
testified, “I believe those are my initials . . . but I did not sign that.” HCD, Track
1. This testimony is consistent with the supervisor’s written statement denying
that she signed her initials. IAF, Tab 5 at 21.
¶13 The appellant’s remaining assertions constitute mere disagreement with the
initial decision and thus do not provide a basis for disturbing it. See Broughton,
33 M.S.P.R. at 359. Therefore, we agree with the administrative judge’s decision
to sustain the agency’s charge of filing a false statement.
9
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
10
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.