UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

BRIAN A. SEIGARS, Appellant,

v

. DEPARTMENT OF THE AI R FORCE, Agency

. DOCKET NUMBER DA

- 0752

- 15

- 0091

- I

- 1

DATE: September 14, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Anthony W. Walluk , Esquire , San Antonio, Texas, for the appellant

. Kyle Little
, Esquire, Randolph A ir Force Base , Texas, 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 decis ion, 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

er roneous application of the law to the facts of the case; the administrative

1 A nonprecedential order is on e that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish the m in any future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 er ror 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 u nder 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
, a GS

- 12 Air Traffic Control Specialist (Terminal) with the
80 th Flying Training Wing at Sheppard Air Force Base in Texas, was removed for

“ Deliberate Misrep resentation

. ” The agency charged that, between approximately January 1 and May 1, 2014 , he inflated the hours he worked by submitting Automated Time Attendance and Production System (ATAAPS) entries or other time cards showing that he worked approximately 91.75 hours mo re than he actually did

. The agency referenced 22 incidents representing approximately $5000 in pay. Initial Appeal File (IAF), Tab 4, Subtabs 4 a

- 4b, 4 h

. In effecting
th e action, the agency considered the appellant ’s past disciplinary record
, a n August 26, 2014 letter of reprimand he received for sleeping on duty. Id.
, Subtab 4h

. ¶3 On appeal, the appellant argued that the penalty of removal was too harsh. IAF, Tab 1 at 3. He requested a hearing. Id. at 2. During adjudication, t h e appellant a cknowled ged the errors that occurred in his time and attend a nce records , but he claimed that they were unintentional and were caused by the agency’s lack of supervisory oversight and its failure to properly train employees
on the ATAAPS . IAF, Tab 15

. ¶4 In her ini tial decision, the administrative judge found that the agency proved the elements of misrepresentation by preponderant evidence. IAF
,3

Tab 25, Initial Decision (ID) at 6. Specifically, she found that the agency proved that the appellant supplied incorrect information and that he did so knowingly with the intention of defrauding, deceiving, or misleading the agency. ID at 6

- 9. The administrative judge further found that the agency’s action promotes the efficiency of the service, ID at 9, and that removal is a reasonable penalty for the sustained charge
, ID at 9

- 14 , and she affirmed the agency’s action, ID at 1, 14

. ¶5 The appellant has filed a petition for review , Petition for Review (PFR) File, Tab 1, to which the agency has responded in opposition, PFR Fi le, Tab 3

. ¶6 The appellant does not deny that he provided incorrect information, but he contends that the administrative judge erred in finding that he did so with the intention of defrauding, deceiving, or misleading the agency. The intent to
defraud or mislead the agency 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. See Whelan v. U.S.
Postal Service
, 103 M.S.P.R. 474
, ¶ 6 (2006), aff’d , 231 F. App’x 965 (Fed. Cir. 2007). Whether intent has be en proven must be resolved by considering the totality of the circumstances, including the appellant ’s plausible explanation, if

any. Boo v. Department of Homeland Security
, 122 M.S.P.R. 100 , ¶ 10 (2014)

. ¶7 In finding that the agency established intent, t he adm inistrative judge first
found that the appellant ’s testimony that he did not know how to enter leave in
the ATAAPS until after he was confronted with the attendance discrepancies was at odds with his having correct ly inputted a number of hours of annual an d sick leave during the period at issue. ID at 7. S he also considered the appellant ’s testimony that he could not open the Power Point slides that the agency provided to employees to explain the ATAAPS but found it contrary to the credible testimony of th e 80 th Flying Training Wing Resource Advisor that the appellant
had called her office several times for assistance in using the System and that she provided such assistance to him

. In addition, the administrative judge considered the appellant ’s claim tha t he might have supplied wrong information because he4

did not know how to make changes to time cards that already had been submitted until after the period at issue but found it inconsistent with the testimony of one
of his coworkers that, when he had to c hange a time card after it had been submitted, he ask ed for and received assistance either from his certifie r or from
the Wing Resource Advisor. ID at 7

- 8. The administrative judge also found the appellant ’s claim that h is ATAAPS entries were simply i nno cent errors inconsistent with what she found was a pattern of his claiming more time than he actually worked and less leave than he actually took, information that he could

access that should have revealed the discrepancies to him and which demonstrated

on his part a reckless disregard for the truth. T he administrative judge further
found that the appellant personally benefited from his deception. ID at 8

. ¶8 In disputing the administrative judge ’s finding that the agency proved that
he provided the wrong information with the intention of defrauding, deceiving, or misleading the agency
, PFR File, Tab 1 at 3

- 6, t he appellant challenges the administrative judge ’s finding that the Wing Resource Advisor was credible in her hearing testimony, whereas the appella nt himself was not, id

. at 3

- 4. To resolve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state
which version she believes, and explain in detail why she found the chosen version more credible, considering a number of factors , as appropriate, set forth by the Board in its seminal case of Hillen v. Department of the Army
, 35 M.S.P.R.
453 , 458 (1987) ( factors comprising the witness’s opportunity and capacity to observe the event or act in question
, the witness’s character, prior inconsistent statement by the witness
, a witness’s bias, or lack of bias
, the contradiction of the
witness’ s version of events by other evidence or its consistency with other evidence, the inherent improbability of the witness’s version of events
, and the
witness’s demeanor )

. The Board must give due deference to an administrative judge ’s credibility determinat ions when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing; the Board5

may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Just ice , 288 F. 3d 1288 , 1301 (Fed. Cir. 2002). Here, the administrative judge found that the Wing Resource Advisor testified in a very clear, dir ect , and straightforward manner and that she was a n extremely credible and knowledgeable witness
, ID at 7 , but that the appellant ’s testimony was not clear, direct, or straightforward and was inconsistent with specific evidence of record, which she detailed, ID at 6. Because the appellant has failed to provide sufficiently sound reasons for overturning the administrative judge ’s credibility determ inations that were based on her observations of the witnesses’ demeanor, we find it appropriate to defer to them. Haebe
, 288 F. 3d

at 1302

. ¶9 T he appellant also argues that t he administrative judge did not consider his
claim that the only training the agency provided on ATAAPS, Power Point slides
, did not provide adequate assistance for him in submitting his time and a ttendance
records as evidenced by the fact that other employees had to ask for help. PFR File, Tab 1 at 5. On the contrary, the administrative judge did address this claim, but she found, considering the testimony of one of the appellant’s witnesses, tha t assistance was available and that the appellant took advantage of such assistance.
ID at 7

. ¶10 The appellant also argues on review that
, in finding that the appellant ’s actions were intentional, the administrative judge failed to give proper
consider atio n to the fact that he had numerous illnesses and hospitalizations during the period at issue , causing him to use more leave than he had in the past
, and that he had no motive to falsify his entries because he had sufficient leave
balances when the first of his errors occurred and had recently won a significant amount of money in the lottery. PFR File, Tab 1 at 4 , 8. These claims are properly considered under the totality of the circumstances i n connection with the plausibility of the appellant ’s explanati on

. Boo , 122 M.S.P.R. 100
, ¶ 10. As noted, t he administrative judge did consider the appellant ’s claim that he did not6

know how to properly request leave on the ATAAPS, b ut found it incredible. ID

at 8. Whether the appellant had a motive to falsify his time and attendance i s not indicative of whether he acted intentionally since motive reflects only an individual’s inducement to do an act

. Black’s Law Dictionary 891 ( 9t h ed. 2009 ). In any event, t o the extent that the administrative judge may have considered the appellant ’s leave balances or his lottery winning s , it is well established that
failure to mention all of the evidence of record does not mean that t he
administ rative judge did not consider it in reaching her decision. Marques v. Department of Health & Human Services
, 22 M.S.P.R. 129 , 132 (1984), aff’d
, 776 F.2d 1062 (Fed. Cir. 19 85) (Table)

. ¶11 T he appellant also argues on review that , in analyzing the penalty, the deciding official failed to properly consider the factors set forth by the Board in Douglas v. Veterans Administration
, 5 M.S.P.R. 280 , 30 5

- 0 6 (1981). PFR File,
Tab 1 at 11

- 12. Specifically, the appellant contends that the deciding official
did not give adequate consideration to his lack of prior discipline, the fact that the
incidents did not affect his function at work, that “he did not have notice until afterwards,” and that his numerous medical problems during the period at issue resulted in a high number of days absent. Id. at 12

. ¶12 The record reflects that the appellant received a le tter of reprimand on August 26, 2014, for an incident of sleeping on dut y that occurred on May 29, 2014. IAF, Tab 4, Subtab 4i, Subtab 4n at 1. In the Douglas factor checklist that the deciding official completed, he noted the letter of reprimand under
E mployee’s Past Disciplinary Record but indicated that it was a “neutral” factor,

n ot aggravating or mitigating
, i d.
, Subtab 4 c at 2 , and at hearing, he testified that
the letter of reprimand was not a significant factor in his penalty analysis, Hearing Com pact Disc (HCD)

. The administrative judge found that the letter of reprimand met the criteria for consideration as past discipline
, Bolling v. Department of the Air Force , 9 M.S.P.R. 335 , 339

‐ 40 (1981) ( stating that t he
Board’s review of a prior disciplinary action is limited to determining whether7

that action is clearly erroneous, if the employee was informed of the action in writing, the action is a matter of record, and th e employee was permitted to dispute the charges before a higher level of authority than the one that imposed the discipline ) , but she credited the deciding official’s testimony that he was not influenced by the letter of reprimand, and it does not appear t hat t he administrative judge cons trued it to be an aggravating factor in her review. ID

at 13. In fact, t he appellant should not have been considered to have had any past disciplin e because , a t the time of the offense for which he was removed (January

‐ May 2014) , he had no disciplinary record , as the letter of reprimand was issued on August 26, 2014. See Wigen v. U.S. Postal Service
, 58 M.S.P.R. 381
, 384

‐ 85 (1993). To t he extent that th e administrative judge erred in considering
the letter of reprimand, however, any such error did not prejudice the appellant ’s substantive rights because the administrative judge found, and we agree, that
,

even in the absence of any prior discipline, removal is a reasonable penalty for the sustained charge. Panter v. Department of the Air Force
, 22 M.S.P.R. 281 , 282 (1984)

. ¶13 In considering the effect of the appellant ’s offense on his ability to perform
his duties and on his supervisor’s confidence in him, the deciding official acknowledged that the appellant’s misconduct did not affect his ability to do his job or his supervisor’s confidence or trust in his ability to do his job, but that i t did affect his confidence in the appellant ’s ability to uphold the organization’s mission. IAF, Tab 4, Subtab 4c at 3. The deciding official’s testimony was in
accord as he described the appellant ’s high level of respon sibility as a Watch Super visor and instructor in the Air Traffic Control facility and explained that the
misconduct he committed diminished the overall trust he had in the appellant

. HCD. ¶14 Regarding the appellant ’s claim that he “did not have notice unti l afterwards,” the deciding official determined, and the administrative judge foun d,8

that the appellant knew or should have known, when he completed his time and attendance records as he did, that he was representing that he worked approximately 91.75 hour s more than he actually did. IAF, Tab 4, Subtab 4b; ID

at 8. That conclusion is unaffected by the fact that the agency did not discover the discrepancies until sometime after the appellant entered the data

. ¶15 T he appellant next argue s that his medical pr oblems and related absence s should have been considered a mitigating factor, rather than a “neutral” factor as the deciding official described it . H e found that the appellant ’s medical problems
and absences did not affect his ability to properly fill out his time card or otherwise affect his judgment. IAF, Tab 4, Subtab 4c at 7. The administrative judge agreed, finding that any claim that the appellant ’s sleep apnea contributed
to his misconduct was inconsistent with evidence that he otherwise performed adequately at work and submitted leave in ATAAPS properly for some absences.
ID at 12

. ¶16 B ecause the agency’s charge has been sustained, the Board’s review of the penalty selection is limited to determining whether it is so excessive as to be an
abuse of discretion or is otherwise arbitrary, capricious, or unreasonable.
Dou g las
, 5 M.S.P.R. at 302 . The administrative judge found that the deciding official carefully considered the appropriate Douglas factors, both aggravating and mitigating, in determining to remove the appellant , and that removal for the sustained charge is otherwise within the tolerable limits of reasonableness. ID

at 10

- 13. In considering the appellant ’s challenges to that finding , we agree that his misconduct is serious, that his acti ons caused his supervisor to lose trust in him, that no similarly situated employees were treated more favorably, 2 that the appellant was aware that his actions would be considered inappropriate, that he

2 The agency found that, d uring the period at issue, two of the appellant’s coworkers also had discrepancies in thei r time and attendance records, but that, because the coworkers had only minor infractions of 3 hours and 81⁄4 hours, as opposed to the appellant ’s 91. 7 5 hours , they were not valid comparators. IAF, Tab 4, Subtab 4d at 1

- 2.9

lacked rehabilitative potential based on his refusal to take responsibility for his actions, and that there was a lack of alternative sanctions to deter such actions in the future. Further, we agree with the administrative judge that, notwithstanding the appellant ’s years of service and acceptable performa nce, the penalty of
removal is within the tol erable limits of r easonableness for the sustained charge. ¶17 Acc ordingly, we affirm the initial decision.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of thi s final decision by the U

. S

. Court of Appeals for the Federal Circuit. You must submit your request to the

co urt at the following address:
U

. S

. Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 20439

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 ri ght. It is found in
title 5 of the United States 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
United States 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 r elevance is the court’s “Guide for Pro Se10

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 websit e 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 t he services provided by any attorney nor warrants that any attorney will a ccept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ Jennifer Everling Acting Clerk of the Board