UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

KENNETH SHAW, Appellant,

v.
DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER NY

- 0752

- 14

- 0128

- I

- 1

DATE: August 28, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 signific antly 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 result ing 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 1201.11 5 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, and based on the following points and authorities, we conc lude 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 A id, filed a petition for review of an initial decision that sustained a charge o f verbal abuse of a patient, did not sustain a charge of threatening a patient, found that t he appellant failed to prove his affirmative defenses, and mitigated the removal penalty to a 30

- day suspension.
Petit ion for Review (PFR) File, Tab 3. In his pet ition 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 t erminally ill patient as a “[expletive] [expletive] ,” and he challenges the administrative judge’s credibility
deter minations and factual findings. PFR File, Tab 3 a t 9

- 11 ; I nitial Appeal File ( IAF ) , Tab 1 at 10

. The appellant argues that the administrative judge should not
have relied on the unsworn and unsigned statement s of the patient involved in the
incident because the agency coerced the patient into making the statemen t s , 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 t he appellant call the patient a “[expletive] [expletive] ” during th e verbal altercation

. Id . a t 9

- 10. ¶3 Although the appellant admit s that he used the word “ [expletive] ” during the incident, he argues the administrative judge based her decision on an erroneous interpretat ion of statute or regulation

. Id . at 9, 11. He argues that,
b ecause 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 peti tion for review or file a

cross

- petition challenging the administrative judge’s finding s that the agency failed to p rove 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 W hile 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 conclu sions); 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 deter minations does not warrant full review of the record by the Board. ¶5 T he Board must defer to an administrative judge’ s credibility
det erminations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing; the Board may overturn such
d eterminations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). Here, the4

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 te stimony of the nurse who overheard part of the altercation and the written statement s 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 patien t 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 adminis trative judge found that the appellant’s den ial 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 use d the word “[expletive] ” directed towards the patient “violated the agency’s workplace violence prevention policy as such language is clearly unkind, rude, and verbally inappropriat e.” ID at 5. ¶7 We find that the administrativ e 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. A lthough 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 L iteky 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 the5

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 appellan t 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)

. I t is well settled that hears ay 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, t he 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 th e circumstances, we find that the administrative judge reasonably con sidered 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 a t 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, t he 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 t old the pat ient to “get the [expletive] out of my face.” PFR File, Tab 3. H owever, 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 administrati ve judge based her decision on a misleading agency statement. See ID at 4.6

¶10 On review, t he appellant also challenges the administrative judge’s finding s that: (1) the appellant failed to prove his affirmative defe nse of religious discrimination; (2) the agency proved the requisite nexus between the sustained charg e 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 th at the agency articulated a non discriminatory 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
ill egal 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 writt en verbal counseling or nothing. ” Id . a t 11, 13. ¶11 We disagree with the appellant’s arguments on review

. Regarding the appellant’s affirmative defense of religious discrimination, t he 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 becau se 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 di sagrees 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 manager s referred to him as “Malco l m X” several times

. Id

. He also alleged that another manager said that she7

judge’s finding s , 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 t he appe llant 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 a n agency may establish nexus is by
show ing that the employee’s conduct interfered with o r adversely affected the agency’ s mission. See Dixon v. Department of Commerce , 109 M.S.P.R. 314 , ¶ 14 (2008). Verbal abus e of a p atient adversely affects th e 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 t he agency proved the requisite nexus between the sustained charge and the efficiency of service

. See ID at 11

- 12. ¶13 We further find that t he 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 t he appellant apologized to the patient and had good performance ratings and no prior discipline. ID

at 13

- 14. In re aching his decision, t he 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 equitab ly before the agency proceeded to the adverse action ,” and “ helpe d 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 APPELL ANT 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 E mployment 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 1 31 M Street, NE

Suite 5SW12G Washington, D.C. 20507 You should send your request to EEOC no later than 30 calendar days af ter 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 error s by showing that th e error s 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 tha t is not prejudicial to a party’ s substantive rights provides no basis for re versal 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 de cision 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, natio nal 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