UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KENNETH SHAW,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

NY-0752-14-0128-I-1

DATE: August 28, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kenneth Shaw, Poughkeepsie, New York, pro se.

Jack DiTeodoro, Brooklyn, New York, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

mitigated his removal penalty to a 30-day suspension. 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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, and based on the following 

points and authorities, 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, a Housekeeping Aid, filed a petition for review of an initial 

decision that sustained a charge of verbal abuse of a patient, did not sustain a 

charge of threatening a patient, found that the appellant failed to prove his 

affirmative defenses, and mitigated the removal penalty to a 30-day suspension. 

Petition for Review (PFR) File, Tab 3. In his petition for review, the appellant 

argues that the administrative judge erred in sustaining the charge that he verbally 

abused a patient because the agency failed to prove the charge by preponderant 

evidence. Id. at 8-9.

2

 Specifically, the appellant reasserts the argument he made 

on appeal below denying that he referred to the terminally ill patient as a 

“[expletive] [expletive],” and he challenges the administrative judge’s credibility 

determinations and factual findings. PFR File, Tab 3 at 9-11; Initial Appeal File 

(IAF), Tab 1 at 10. The appellant argues that the administrative judge should not 

have relied on the unsworn and unsigned statements of the patient involved in the 

incident because the agency coerced the patient into making the statements, and 

the agency failed to have the patient testify at the hearing. Id. at 9. The appellant

 2 In deciding this matter, the Board considered the corrected petition for review

submitted by the appellant. See PFR File, Tab 3.
3

also disputes the administrative judge’s demeanor-based finding that a nurse 

employed by the agency credibly testified that she heard the appellant call the 

patient a “[expletive] [expletive]” during the verbal altercation. Id. at 9-10. 

¶3 Although the appellant admits that he used the word “[expletive]” during 

the incident, he argues the administrative judge based her decision on an 

erroneous interpretation of statute or regulation. Id. at 9, 11. He argues that, 

because he apologized to the patient immediately after the incident, his conduct 

did not fall within the Wikipedia definition of verbal abuse. Id. at 11. The 

appellant also argues, among other things, that the penalty was unreasonable. Id. 

The agency did not respond to the appellant’s petition for review or file a 

cross-petition challenging the administrative judge’s findings that the agency 

failed to prove the charge of threatening a patient and mitigating the removal 

penalty to a 30-day suspension for the proven charge of verbal abuse of a patient. 

Initial Decision (ID) at 8, 14. 

¶4 While the appellant does not agree with the administrative judge’s findings

and conclusions, we discern no reason to reweigh the evidence or substitute our 

assessment of the record evidence for that of the administrative judge. See 

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason 

to disturb the administrative judge’s findings when the administrative judge 

considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions); Broughton v. Department of Health & Human Services, 

33 M.S.P.R. 357, 359 (1987) (same). The appellant’s mere disagreement with the 

administrative judge’s findings and credibility determinations does not warrant 

full review of the record by the Board. 

¶5 The Board must defer to an administrative judge’s credibility 

determinations when they are based, explicitly or implicitly, on the observation of 

the demeanor of witnesses testifying at a hearing; the Board may overturn such 

determinations only when it has “sufficiently sound” reasons for doing so. Haebe 

v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the 
4

administrative judge thoroughly reviewed the hearing testimony and specifically 

cited to Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), in setting 

forth her credibility determinations. ID at 4-5. The administrative judge credited 

the evidence submitted by the agency, which included the hearing testimony of

the nurse who overheard part of the altercation and the written statements of the 

patient regarding the appellant’s use of profanity, as more plausible and credible 

than the appellant’s assertions that he did not call the patient a “[expletive] 

[expletive].” Id. 

¶6 In finding the nurse’s testimony credible, the administrative judge gave 

great weight to her demeanor at the hearing, finding that her testimony was 

straightforward, unequivocal, and consistent with her prior written statement and 

the statement of the patient involved in the incident. ID at 5. The administrative 

judge found that the appellant’s denial that he used the word “[expletive]” was 

not credible based on his demeanor and other evidence of record. ID at 5. The

administrative judge also found that the appellant’s admission that he used the 

word “[expletive]” directed towards the patient “violated the agency’s workplace 

violence prevention policy as such language is clearly unkind, rude, and verbally 

inappropriate.” ID at 5. 

¶7 We find that the administrative judge thoroughly explained her

demeanor-based credibility determinations in the initial decision, and we discern 

no reason to disturb her well-reasoned findings. See Crosby, 74 M.S.P.R. 

at 105-06. Although the appellant alleges that the administrative judge was 

biased in considering the appellant’s demeanor at the hearing, he has not shown 

that the administrative judge’s comments or actions evidence “a deep-seated 

favoritism or antagonism that would make fair judgment impossible.” PFR File, 

Tab 3 at 7; see Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. 

Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). 

¶8 We further find that the administrative judge was entitled to consider the 

unsworn, unsigned statements of the terminally ill patient involved in the 
5

incident, regardless of the fact that the patient did not testify at the hearing. In 

response to an agency interview about the incident, the patient stated in relevant 

part that, after the appellant woke him up by banging a trash can on his door, the 

appellant called him a “[expletive] [expletive].” See IAF, Tab 6, Subtab 4d 

at 5-6. The admissibility of evidence is a procedural matter that falls “within the 

sound discretion of the Board and its [administrative judges].” Kewley v. 

Department of Health & Human Services, 153 F.3d 1357, 1364 (Fed. Cir. 1998). 

It is well settled that hearsay evidence “may be used in Board proceedings and 

may be accepted as preponderant evidence even without corroboration if, to a 

reasonable mind, the circumstances are such as to lend it credence.” Id. 

¶9 Here, the administrative judge found that the patient’s statement was

consistent with the hearing testimony and prior written statement of the nurse 

who overheard the inappropriate comments underlying the verbal abuse charge. 

ID at 4-5; see IAF, Tab 6, Subtab 4d at 1-2, 5-6, Subtab 4e at 1. Under the 

circumstances, we find that the administrative judge reasonably considered the 

patient’s unsworn and unsigned statement in finding that the agency proved the 

verbal abuse charge. ID at 4-5. Although the appellant further argues that the 

administrative judge failed “to carefully examine all statements before making 

her judgment,” we find that the administrative judge’s failure to mention all of 

the evidence of record does not mean that she did not consider it in reaching her

decision. 3

 PFR File, Tab 3 at 12; Marques v. Department of Health & Human 

Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) 

(Table). 

 3 In addition, the appellant argues that the administrative judge relied on a misleading 

statement written by the agency, and she never considered the appellant’s statement 

denying that he called the appellant a “[expletive] [expletive]” and admitting that he 

told the patient to “get the [expletive] out of my face.” PFR File, Tab 3. However, the 

administrative judge specifically referenced the appellant’s statement in the initial 

decision, and the appellant offers no evidence to support his argument that the 

administrative judge based her decision on a misleading agency statement. See ID at 4. 
6

¶10 On review, the appellant also challenges the administrative judge’s findings

that: (1) the appellant failed to prove his affirmative defense of religious 

discrimination; (2) the agency proved the requisite nexus between the sustained 

charge and the efficiency of service; and (3) mitigating the removal to a 30-day 

suspension was reasonable. PFR File, Tab 3 at 7, 13; see ID at 12, 14. In support 

of his petition, the appellant argues that he established a prima facie case of 

religious discrimination and the administrative judge erroneously found that the 

agency articulated a nondiscriminatory reason for its action. PFR File, Tab 3

at 12-13. He argues that the agency’s decision to remove him, despite his lack of 

prior discipline, was so egregious and unjustified that “[t]he discrimination is 

illegal on its face.” Id. at 12. The appellant also argues, among other things, that

the agency failed to prove nexus, and the proper penalty is “a written verbal 

counseling or nothing.” Id. at 11, 13. 

¶11 We disagree with the appellant’s arguments on review. Regarding the 

appellant’s affirmative defense of religious discrimination, the administrative 

judge found that the charged misconduct was sufficient to establish a 

nondiscriminatory reason for the agency’s removal action and proceeded to 

determine the ultimate question of whether the appellant met his overall burden 

on this issue. ID at 10. The administrative judge found that the appellant failed 

to show by preponderant evidence that the agency discriminated against him 

based on his religion because the deciding official presented unrebutted testimony

that he was unaware of the appellant’s Muslim religion, and the appellant 

submitted no testimony in support of his religious discrimination claim at the 

hearing.

4

 ID at 11. Although the appellant disagrees with the administrative 

 4 In support of his affirmative defense of religious discrimination, the appellant stated 

that his supervisors must have known that he is a Muslim. PFR File, Tab 13 at 3. He 

alleged that the agency ignored his complaints to management “regarding statements 

made against his Muslim religion,” and that one of his former managers referred to him 

as “Malcolm X” several times. Id. He also alleged that another manager said that she 
7

judge’s findings, the appellant submits no evidence on review as proof that the 

agency discriminated against him based on his religion. We therefore find no 

reason to disturb the administrative judge’s finding that the appellant failed to 

prove his affirmative defense of religious discrimination. 

¶12 Moreover, we find no merit in the appellant’s argument that the agency 

failed to prove nexus. PFR File, Tab 3 at 13. An agency must establish that there 

is a nexus between the proven offense and the efficiency of the service. See 

5 U.S.C. § 7513(a). One of the ways that an agency may establish nexus is by 

showing that the employee’s conduct interfered with or adversely affected the 

agency’s mission. See Dixon v. Department of Commerce, 109 M.S.P.R. 314, 

¶ 14 (2008). Verbal abuse of a patient adversely affects the agency’s mission 

here of providing quality health care. See Byers v. Department of Veterans 

Affairs, 89 M.S.P.R. 655, ¶ 23 (2001). Accordingly, we agree with the 

administrative judge’s finding that the agency proved the requisite nexus between 

the sustained charge and the efficiency of service. See ID at 11-12. 

¶13 We further find that the appellant’s misconduct was serious and warrants 

discipline. The administrative judge found that a 30-day suspension is a 

reasonable penalty for the proven charge, even though the appellant apologized to 

the patient and had good performance ratings and no prior discipline. ID 

at 13-14. In reaching his decision, the administrative judge properly balanced the 

seriousness of the proven misconduct against the mitigating factors and found 

that maximum reasonable penalty for the sustained charge was a 30-day 

suspension. 5

 ID at 13-14. We find that the appellant’s arguments on review 

 

smelled fish and stated that it must be the appellant “and his [Muslim] religion using 

the microwave.” Id. 

5 On review, the appellant also expresses his belief that the administrative judge should 

have advised the agency to review the labor/management agreement before the hearing 

on his appeal. PFR File, Tab 3 at 12. He argues that this “may have ensured that the 

appellant was being treated fairly and equitably before the agency proceeded to the 

adverse action,” and “helped to ensure agency contract compliance.” Id. Nonetheless,
8

present no reason to disturb the administrative judge’s penalty determination. We 

therefore deny the petition for review. 

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 

 

the appellant does not demonstrate the harmfulness of the purported errors by showing 

that the errors were of sufficient weight to warrant outcome different from that of the 

initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 

(1984) (an adjudicatory error that is not prejudicial to a party’s substantive rights 

provides no basis for reversal of an initial decision); Karapinka v. Department of 

Energy, 6 M.S.P.R. 124, 127 (1981) (the administrative judge’s procedural error is of 

no legal consequence unless it is shown to have adversely affected a party’s substantive 

rights). 
9

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 

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. § 2000e5(f) and 

29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board