Filed: Jan. 12, 2016
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAVID J. THOMPSON, DOCKET NUMBER Appellant, DC-0752-15-0392-I-1 v. DEPARTMENT OF COMMERCE, DATE: January 12, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 David J. Thompson, Manassas, Virginia, pro se. Janine M. Herring and Christiann C. Burek, Washington, D.C., 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 sustai
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAVID J. THOMPSON, DOCKET NUMBER Appellant, DC-0752-15-0392-I-1 v. DEPARTMENT OF COMMERCE, DATE: January 12, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 David J. Thompson, Manassas, Virginia, pro se. Janine M. Herring and Christiann C. Burek, Washington, D.C., 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 sustain..
More
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID J. THOMPSON, DOCKET NUMBER
Appellant, DC-0752-15-0392-I-1
v.
DEPARTMENT OF COMMERCE, DATE: January 12, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David J. Thompson, Manassas, Virginia, pro se.
Janine M. Herring and Christiann C. Burek, Washington, D.C., 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 his 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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).
¶2 The appellant served as a General Engineer with the agency in Washington,
D.C. Initial Appeal File (IAF), Tab 6 at 34. The agency issued the appellant a
notice of proposed removal charging him with two specifications of falsification
and one specification of lack of candor based upon answers he provided in his
preemployment application paperwork. Id. at 4-10. Specifically, the agency
alleged that the appellant engaged in falsification when he indicated that he had
not been fired from any job for any reason on both his declaration for Federal
employment and his questionnaire for a national security position. Id. at 7. The
agency also alleged that the appellant lacked candor when he reported that he left
his prior position of Federal employment because of a “lack of security
clearance”; however, according to the agency, the appellant was removed from
his prior Federal position for failing to meet a condition of employment. Id. at 8.
¶3 The appellant provided both an oral and a written response to the agency’s
notice of proposed removal. IAF, Tab 5 at 41-42, 46-115. The deciding official
subsequently issued a decision letter sustaining both charges and finding that the
proposed removal was warranted in light of the seriousness of the appellant’s
misconduct. Id. at 30-40. The appellant filed a timely appeal of his removal,
which, following a hearing, the administrative judge sustained. IAF, Tab 38,
3
Initial Decision (ID). In his initial decision, the administrative judge found that
the agency proved that the appellant intentionally omitted that he had been
removed from his prior position of employment with the Marine Corps
Intelligence Activity, and he thus sustained both specifications supporting the
falsification charge. ID at 2-8. The administrative judge further found that the
appellant lacked candor when failed to disclose the nature of his prior removal
from Federal service on his questionnaire for a national security position. ID
at 8-9. Based on these established charges of misconduct, the administrative
judge found that the appellant’s removal promoted the efficiency of the service
and that it fell within the tolerable limits of reasonableness under Douglas v.
Veterans Administration, 5 M.S.P.R. 280 (1981). ID at 9-12.
¶4 The appellant has filed a petition for review reasserting that he
misunderstood the nature of the questions posed to him in the preemployment
applications and that there is a difference between being fired, being terminated,
and being removed. Petition for Review (PFR) File, Tab 1 at 5-6. The appellant
also argues that he received state unemployment benefits after being removed
from his prior position of Federal service, thus supporting his claims that he was
not fired for cause and that he did not complete the forms inaccurately. Id. at 9.
The agency has filed a response in opposition to the petition for review. PFR
File, Tab 3.
¶5 To establish a charge of falsification, the agency must prove by
preponderant evidence that the appellant: (1) supplied wrong information; and
(2) knowingly did so with the intention of defrauding, deceiving, or misleading
the agency. See Boo v. Department of Homeland Security, 122 M.S.P.R. 100,
¶ 10 (2014). The intent element of a falsification charge may be established by
circumstantial evidence or inferred when the misrepresentation is made with a
reckless disregard for the truth or with conscious purpose to avoid learning the
truth. Id. The Board has clarified that, consistent with Leatherbury v.
Department of the Army, 524 F.3d 1293, 1300 (Fed. Cir. 2008), an agency also
4
must also show that the appellant engaged in falsification for his own private
material gain. Id., ¶ 12. In determining whether the agency has proven an
appellant’s intent, the Board will consider the totality of the circumstances
surrounding the appellant’s conduct, including the appellant’s plausible
explanation for his conduct, if any. Id., ¶ 10.
¶6 We agree with the administrative judge that the agency proved both
specifications supporting its falsification charge. The record demonstrates that
the appellant marked “no” on his declaration for Federal employment when asked
whether, among other things, he had “been fired from any job for any reason”
during the last 5 years, and that he also marked “no” on his national security
position questionnaire in response to a similar question about his prior Federal
employment within the past 7 years. IAF, Tab 7 at 27-28, 65-66. Contrary to the
answers the appellant provided, he was removed from his prior Federal position
for cause in May 2011. Id. at 93. We agree with the administrative judge that the
circumstances surrounding the appellant’s completion of these forms imply that
he intentionally completed them in this manner, 2 and that his intentional omission
2
The appellant conceded that he completed these forms in this manner, and there is no
dispute that he engaged in the conduct, as alleged. ID at 6. Upon our review of the
appellant’s national security position questionnaire, we note that the appellant stated
that he was “accused [by his former employer] of being many things that were not true”
and that his prior employer “made up false charges for which [he] never was able to
defend against.” IAF, Tab 7 at 27. The appellant further completed a summary of
discipline and warnings he received during his prior Federal service on his national
security questionnaire. Id. at 27-28. Despite these admissions, the appellant expressly
answered “no” to whether he was fired, quit after being told he would be fired, or left
employment by mutual agreement following charges or allegations of misconduct or
notice of unsatisfactory performance, which is the substance of one of the agency’s
falsification specifications. Id. at 28; see IAF, Tab 6 at 7. Thus, although the appellant
was forthright about portions of his prior Federal service, we agree with the
administrative judge that the agency proved that the appellant intentionally falsified his
national security position questionnaire when he failed to disclose he was fired from his
prior position of employment. See Christopher v. Department of the Army,
107 M.S.P.R. 580, ¶ 17 (2008) (holding that a partial disclosure of correct information
does not outweigh a finding of intentional falsification on a preemployment
application), aff’d, 299 F. App’x 964 (Fed. Cir. 2008).
5
was done to obscure the circumstances surrounding the termination of his prior
Federal service. ID at 6-8. Consistent with our analysis in Boo, we find the
appellant’s obfuscation of the circumstances surrounding his prior removal was
done for private material gain, and thus supports a falsification charge.
See 122 M.S.P.R. 100, ¶ 13 (finding that an intent to secure Federal employment
could satisfy the private material gain element of a falsification charge) (citing
Delessio v. U.S. Postal Service, 33 M.S.P.R. 517, 520-21, aff’d, 837 F.2d 1096
(Fed. Cir. 1987) (Table)).
¶7 On review, the appellant argues that both the agency and the administrative
judge applied a colloquial definition of the term “fired” and that he did not
understand his prior removal from Federal service to fall within the meaning of
this term as used on the preemployment documents. PFR File, Tab 1 at 5-6. The
administrative judge, however, addressed this argument in his initial decision, and
he rendered credibility determinations against the appellant insofar as he argued
that he did not believe he was fired from his prior position and that he did not
have to disclose the circumstances of his prior termination from Federal service
on the preemployment forms. ID at 7. We defer to the administrative judge’s
credibility determinations on this issue, and the appellant’s challenge to these
determinations amounts to nothing more than disagreement with the
administrative judge’s findings, which is an insufficient basis for overturning an
initial decision on petition for review. See Carney v. Department of the
Navy, 49 M.S.P.R. 468, 471 (1991). We concur with the administrative judge,
moreover, that the appellant’s explanations for his omissions are not plausible,
and they do not obviate finding that the appellant intentionally sought to deceive
the agency for his own material gain. See Christopher, 107 M.S.P.R. 580, ¶ 19
(finding the appellant’s explanation for only partially disclosing information on
his preemployment application was not credible).
¶8 We also agree with the administrative judge that the agency established its
lack of candor charge based on the appellant’s failure to give a complete answer
6
on his national security position questionnaire. ID at 7-8. Differing from
falsification, lack of candor is a broader, more flexible concept, and may involve
a failure to disclose something that should have been disclosed to make a
statement accurate and complete. See Hoofman v. Department of the
Army, 118 M.S.P.R. 532, ¶ 13 (2012), aff’d, 526 F. App’x 982 (Fed. Cir. 2013).
We likewise agree with the administrative judge that the appellant lacked candor
when he responded that “the reason for leaving the employment activity” with his
former employer was a “lack of a security clearance.” IAF, Tab 7 at 28. The
appellant’s answer to this question misleads the reader and suggests that he
voluntarily left Federal service, a fact that is not borne out by his employment
history. We concur with the administrative judge that the appellant’s response to
this question was less than forthright, and that his failure to explain the
circumstances surrounding his “leaving the [prior] employment activity” supports
the agency’s lack of candor charge. Chavez v. Small Business
Administration, 121 M.S.P.R. 168, ¶ 6 (2014) (finding a failure to explain the
context of an answer supported a lack of candor charge); Hoofman, 118 M.S.P.R.
532, ¶¶ 13-15 (finding that the failure to explain the circumstances of a leave
request established a lack of candor).
¶9 In similar cases, the Board has found that an employee’s removal for
falsification and lack of candor promotes the efficiency of the service, and we
find no reason to depart from this standard here. See Whelan v. U.S. Postal
Service, 103 M.S.P.R. 474, ¶ 9 (2006), aff’d, 231 F. App’x 965 (Fed. Cir. 2007);
Harmon v. General Services Administration, 61 M.S.P.R. 327, 334 (1994).
¶10 We similarly find no reason to disturb the administrative judge’s finding
that the appellant’s removal falls within the bounds of reasonableness under the
facts of this case. Where, as here, all of the agency’s charges are sustained, the
Board will review the agency-imposed penalty only to determine if the agency
considered all the relevant factors and exercised management discretion within
the tolerable limits of reasonableness. See Whelan, 103 M.S.P.R. 474, ¶ 10. We
7
agree with the administrative judge that the deciding official conscientiously
considered all of the relevant factors in rendering a penalty determination in this
case, including the seriousness of the appellant’s omissions, the intentional nature
of his misconduct, and the fact that he was on notice of the need to complete the
preemployment and national security position questionnaires in an accurate and
truthful manner. IAF, Tab 5 at 35-37. The deciding official also considered the
appellant’s aggregate length of service, absence of disciplinary history while
employed with the agency, and his interpretations of the forms’ terms as
mitigating factors, but he found that these considerations did not outweigh either
the seriousness of the appellant’s misconduct or the fact that his actions
undermined his supervisor’s trust and confidence in his abilities to perform his
responsibilities. Id. Finally, the deciding official weighed the appellant’s
argument that he suffered from a medical condition that contributed to his
misinterpretation of the forms, but he found this explanation unpersuasive.
Id.
at 37; see Sherlock v. General Services Administration, 103 M.S.P.R. 352, ¶ 11
(2006) (explaining that a medical condition that contributed to the charged
conduct is entitled to weight as a mitigating factor). Under these circumstances,
we concur with the administrative judge that the appellant’s removal falls within
the bounds of reasonableness, and we affirm the initial decision.
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:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
8
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 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
9
