UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DONNA JO KRUER,

Appellant,

v.

DEPARTMENT OF COMMERCE,

Agency.

DOCKET NUMBER

CH-0752-13-0595-I-1

DATE: August 28, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jeremy A. Lannan, Louisville, Kentucky, for the appellant.

Kelly Frederick, Jeffersonville, Indiana, for the appellant.

Johahna Johnson, Washington, D.C., 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 

sustained her removal. Generally, we grant petitions such as this one only when: 

the initial decision contains erroneous findings of material fact; the initial 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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. Except as 

modified by the penalty analysis set forth below, we AFFIRM the initial decision.

¶2 The appellant was a GS-5 Lead Statistical Assistant in a center which has as 

its function telephone interviewing activities. Initial Appeal File (IAF), Tab 10 at 

127-30. Serving as a “coach,” she provided quality control of data obtained by 

agency employees who conducted telephone surveys by monitoring interviewing 

staff to ensure conformity with standards and preparing reports summarizing the 

results to management. Id. In removing the appellant for inappropriate conduct,

the agency alleged that, on five occasions, she was connected to two interviewers 

at overlapping times, yet filed reports indicating that she had monitored all of 

both sessions. Id. at 32-35, 25-28. The agency stated that it had considered the 

appellant’s past record, consisting of an oral admonishment she received in March 

2001 for absence without leave and a written reprimand she received in February 

2004 for taking an unauthorized break. Id. at 34. 

¶3 On appeal, the appellant challenged the charged misconduct and argued that 

the penalty was unreasonable. Id., Tab 1 at 6. She requested a hearing. Id. at 12.

¶4 Thereafter, the administrative judge issued an initial decision affirming the 

agency’s action. Id., Tab 25, Initial Decision (ID) at 1, 10. In sustaining the 

charge, the administrative judge found more credible the testimony of agency 
3

officials, as to the propriety of what occurred, than the testimony of the appellant. 

ID at 2-6. The administrative judge further found that a nexus existed between 

the sustained charge and the efficiency of the service, ID at 6-7, and that removal 

was a reasonable penalty, ID at 7-10.

¶5 On petition for review, the appellant challenges the administrative judge’s 

findings on the merits and her credibility determinations and also raises an issue 

related to discovery. Petition for Review (PFR) File, Tab 1 at 4-6. In addition, 

the appellant argues that the administrative judge improperly relied on her past 

record. Id. at 6. The agency has responded in opposition to the appellant’s 

petition. Id., Tab 5. 

¶6 The charge at issue is inappropriate conduct. Where, as here, an agency 

employs a generic label for an adverse action charge, the Board looks to the 

specifications to determine what conduct the agency is relying on as the basis for 

its action. Boltz v. Social Security Administration, 111 M.S.P.R. 568, ¶ 16

(2009). In the five specifications supporting the charge, the agency alleged, and 

provided evidence to show, that the appellant conducted multiple monitoring 

sessions at the same time, that is, she was connected to two interviewers at 

overlapping times but filed reports that she had fully monitored both sessions. 

IAF, Tab 10 at 51-70. The administrative judge found that the appellant did not 

dispute that she logged into two sessions at the same time but determined that she 

offered various explanations for her actions. ID at 2. For example, early on, she 

explained that, by her actions, she was endeavoring to find out if a particular 

interviewer she had monitored before was present. ID at 2; IAF, Tab 10 at 47. 

Later, in her reply to the notice of proposed removal, she indicated that she had 

simply forgotten to log out of one session before conducting another evaluation. 

ID at 3; IAF, Tab 10 at 29. And during the hearing, she testified that she was 

never told that she could not monitor two interviews at the same time, and that 

she did so by toggling between them. Hearing Compact Disc (CD).
4

¶7 The administrative judge rejected the appellant’s claim that she was not on 

notice that she could not monitor two sessions at the same time or overlapping 

times. In doing so, the administrative judge considered the testimony of two 

agency officials that the agency does not allow the simultaneous monitoring of 

two different interviews. ID at 4. The administrative judge also relied on an 

official reprimand the appellant received on February 2, 2005, in part for failing 

to follow proper work procedures by providing feedback to an interviewer 

without having monitored the complete call. IAF, Tab 19 at 6-8. This reprimand 

is one of two elements of the appellant’s past record that the agency indicated it 

relied on in taking this action.

2 Prior to the conclusion of the hearing, the agency 

requested to recall a witness to rebut the appellant’s testimony regarding her lack 

of knowledge and, in lieu thereof, the administrative judge allowed the agency to 

introduce documentary evidence. Several days after the hearing, the agency 

offered the document in question to impeach the appellant’s credibility as to her 

claim that she was not on notice that it was improper to “score” a session without 

having monitored the entire session. Id. The appellant objected as the agency 

had not otherwise submitted the document as part of the record in this case, id., 

Tab 20, but the administrative judge overruled the objection and accepted the 

document, id., Tab 24. In assessing the appellant’s credibility, the administrative 

judge found in the initial decision that, based on the written reprimand, and 

contrary to her protestations, the appellant was on notice that the type of conduct 

that led to her removal was unacceptable and, if repeated, would subject her to 

future disciplinary action. ID at 6.

¶8 There is nothing improper in considering the appellant’s prior misconduct 

in impeaching her credibility, if the misconduct had anything to do with her 

 2 The date of this action as indicated in the notice of proposed removal, February 2004, 

appears to be in error, as does the recitation of the stated charge. IAF, Tab 10 at 34. 

There were actually two charges in the reprimand. Id., Tab 19 at 6-8. The agency 

acknowledged that there was, in fact, only one prior reprimand. Id., IAF, Tab 11 at 8.
5

propensity for telling the truth. Carrick v. U.S. Postal Service, 67 M.S.P.R. 280, 

283, aff’d, 69 F.3d 555 (Fed. Cir. 1995) (Table); Hillen v. Department of the 

Army, 35 M.S.P.R. 453, 459 (1987). Here, the administrative judge considered 

the appellant’s prior misconduct to impeach her credibility as to her denial that 

she was on notice that the conduct that formed the basis for her removal was 

wrong. That misconduct did bear on the appellant’s propensity to tell the truth 

because, in scoring the session described in the prior misconduct, she 

purposefully gave the impression that she had monitored the entire session when, 

in fact, she had not. Under the circumstances, we find that the administrative 

judge did not err in relying on the reprimand to impeach the appellant’s 

credibility.

3

 Moreover, in finding the appellant less credible than agency 

witnesses, the administrative judge also considered the varied explanations that 

she provided for her actions. Prior inconsistent statements are among the factors 

appropriate for an administrative judge’s consideration when making a credibility 

determination. Hillen, 35 M.S.P.R. at 458. 

¶9 The Board will not disturb an administrative judge’s findings when the 

administrative judge considered the evidence as a whole, drew appropriate 

inferences, and made reasoned conclusions of credibility. See Crosby v. U.S. 

Postal Service, 74 M.S.P.R. 98, 105-06 (1997); Broughton v. Department of 

Health & Human Services, 33 M.S.P.R. 357, 359 (1987). The Board must give 

deference 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, and can 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).

¶10 Our review shows that, in finding that the agency proved the charge in this 

case, the administrative judge complied with the requirements of Crosby and 

 3 We do not suggest, however, that the agency was thereby free to rely on the written 

reprimand for other purposes in its defense of this action.
6

Broughton in making detailed findings of fact and credibility determinations. 

Although she did not make explicit credibility determinations based on witness 

demeanor, she did so implicitly, finding that the appellant provided several 

inconsistent explanations for her conduct and that she was on notice that her 

actions were improper. We find, therefore, that the appellant has failed to make a 

showing that the administrative judge made erroneous findings of material fact in 

concluding that the agency proved the charge. 4

¶11 On review, the appellant raises a related discovery issue. PFR File, Tab 1 

at 5-6. Specifically she argues that the agency failed to provide interviewer 

INOTES (a computer-generated report of an interviewing session) and WEBCATI

(Computer Assisted Telephone Interviewing) Activity Reports for the monitoring 

sessions at issue. The record reflects that, during discovery, the appellant

requested these documents regarding each of the ten interviewers referenced in 

the notice of proposed removal (Request for Documents #7), and that, in 

response, the agency referred her to the agency file which included the 

WEBCATI reports for each of the instances of misconduct. IAF, Tab 11, Tab 10 

at 51-70. In her motion to compel, the appellant appeared to argue that the 

agency had failed to provide the INOTES. IAF, Tab 12. The administrative 

judge ruled on other parts of the appellant’s motion but did not specifically 

address Request for Documents #7. Id., Tab 15. The appellant asked that the 

administrative judge reconsider her ruling, id., Tab 16, and, she did so, granting

the request to the extent that it related directly to the specifications of misconduct 

 4 As she did in her reply to the proposal notice, IAF, Tab 10 at 31, the appellant argues 

on review that she was on various medications that affected her memory, PFR File, Tab 

1 at 5. The administrative judge considered the claim, albeit in connection with her 

penalty discussion, but found no showing that the misconduct at issue related to the 

appellant’s conditions. ID at 9. Beyond her disagreement, the appellant has not shown 

error in the administrative judge’s finding. To the extent the appellant makes this 

argument to counter the administrative judge’s finding that she is not credible, her 

assertion does not provide a basis for the Board to disturb the administrative judge’s 

findings. Haebe, 288 F.3d at 1301.
7

cited in the notice of proposed removal, id., Tab 18. At the hearing, agency 

officials testified that the documents in question were unavailable as they were 

routinely destroyed after 3 months. Hearing CD. The appellant argues that they 

would have proven beyond a reasonable doubt whether or not she engaged in 

inappropriate conduct, as charged. She has failed, however, to show that the 

administrative judge erred in concluding that the agency proved the charge by 

preponderant evidence in view of her finding that the WEBCATI Reports the 

agency submitted show that, on the five occasions cited, the appellant connected 

to the records of two interviewers at overlapping times, yet reported that she had 

conducted two complete monitoring sessions. Based on our review, we find that 

the appellant has not shown that the administrative judge abused her discretion 

concerning this discovery issue. McCarthy v. International Boundary and Water 

Commission, 116 M.S.P.R. 594, ¶ 15 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 

2012).

¶12 The appellant challenges on review the administrative judge’s reliance, in 

her penalty analysis, on the written reprimand the appellant received on 

February 2, 2005. PFR File, Tab 1 at 6. As noted, the agency referred in the 

proposal notice to this reprimand and an earlier oral admonishment. IAF, Tab 10 

at 34. The administrative judge found that the agency properly relied on the 

appellant’s past record in its penalty selection. ID at 9-10. The Board’s review 

of a prior disciplinary action is limited to determining whether that action is 

clearly erroneous, if the employee was informed of the action in writing, the 

action is a matter of record, and the employee was permitted to dispute the 

charges before a higher level of authority than the one that imposed the 

discipline. Bolling v. Department of the Air Force, 9 M.S.P.R. 335, 339-40 

(1981). Even if the written reprimand meets the Bolling criteria, it provided that 

it would remain in the appellant’s Official Personnel File for a minimum of 

1 year, but no longer than 3 years from January 28, 2005, the date of issuance. 

IAF, Tab 19 at 7. Under the circumstances, reliance on the reprimand for 
8

purposes of enhancing the penalty was improper. Cantu v. Department of the 

Treasury, 88 M.S.P.R. 253, ¶ 6 (2001).

¶13 Although the appellant did not specifically challenge the administrative 

judge’s reliance in her penalty analysis on the March 2001 oral admonishment, 

we find that it too was improper. It was not made a matter of record and we 

therefore cannot determine if it met the Bolling criteria. 

¶14 It remains to determine whether removal was proper as to the cited elements 

of the appellant’s past record. 5

 Prather v. Department of Justice, 117 M.S.P.R. 

137, ¶ 35 (2011). 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 or reasonableness. Ellis v. Department of Defense, 

114 M.S.P.R. 407, ¶ 11 (2010). In reviewing an agency-imposed penalty, the 

Board must give due weight to the agency’s primary discretion in maintaining 

employee discipline and efficiency, recognizing that the Board’s function is not 

to displace management’s responsibility but to ensure that managerial discretion 

has been properly exercised. The Board will modify or mitigate an 

agency-imposed penalty only where it finds that the agency failed to weigh the 

relevant factors or the penalty clearly exceeds the bounds of reasonableness. Id.

¶15 In assessing the appropriate penalty, the deciding official noted the 

appellant’s 13 years of service. IAF, Tab 10 at 25. She nevertheless that the 

appellant’s misconduct was serious in that it harmed the quality of the 

interviewing and jeopardized the integrity of the data collected and that the 

appellant’s actions evidenced a lack of respect for her position and a breach of 

her reliability and trustworthiness. Id. In addition, the deciding official testified 

that she lacked confidence that the appellant would refrain from repeating the 

misconduct when she was not being closely monitored. Hearing CD. 

 5 The deciding official did not specifically indicate in her decision letter that she had 

considered the appellant’s past record. IAF, Tab 10 at 25-26.
9

¶16 Under the circumstances, we find that the deciding official considered the 

relevant factors in determining the penalty. The appellant engaged in serious 

misconduct that caused the agency to lose confidence in her integrity and 

judgment, and the deciding official reasonably determined that those factors 

outweighed any mitigating factors, including her length of service. See Jinks v.

Department of Veterans Affairs, 106 M.S.P.R. 627, ¶ 17 (2007) (in assessing the 

appropriateness of the agency’s penalty selection, the most important factor is the 

nature and seriousness of the misconduct and its relation to the employee’s duties, 

position, and responsibilities, including whether the offense was intentional or 

was frequently repeated). The Board’s role is not to displace the judgment of 

senior agency managers who must have confidence that employees will act 

appropriately at all times. Id.; Batts v. Department of the Interior, 102 M.S.P.R. 

27, ¶ 11 (2006).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision. 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

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 
10

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 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. 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 your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board