N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

CALVIN DONNEL HARDIS ON, Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent

______________________

2015

- 3082

______________________ Petition for review of the Merit Systems Protection Board in No. DC

- 0731

- 14

- 0552 -I- 1.

______________________

Decided: August 5, 2015

______________________

C ALVIN D ONNEL H ARDISON , Washington, DC, pro se.

G REGG P ARIS Y ATES , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R ., D EBORAH A. B YNUM

.

______________________

Before L OURIE , B RYSON , and O’M ALLEY , Circuit Judges.HARDISON v. OPM 2

P ER C URIAM

. Calvin Donnel Hardison (“Hardison”) appeals from the decision of the Merit Systems Protection Board (the “Board”) , which affirmed the decision of the Office of Personnel Management (“OPM”) to separate Hardison from Feder al service, c ancel his eligibilities, and debar him from competition for or appointment to any covered position for three years

. See Hardison v. Office of Pers. Mgm t. , No. DC

- 0731

- 14

- 0552 -I- 1, 2014 WL 7045075 ( M.S.P.B. Dec. 10, 2014) (“ Decision ”)

. Because the Board did not err in affirming OPM’s decision , we affirm

. B ACKGROUND From June 2012 to April 2013, Hardison was e mployed by Adrian L. Merton, Inc. (“ALM”) as a labor er. On April 24, 2013, he was involuntarily terminated from employment for excessive absences.
On Apri l 29, 2013, Hardison submitted Form OF 306

, Declaration for Federal Employment, as part of his appl ication for employment with the Federal governme nt

. Question 12 of that form asks : During the last 5 years, have you been fired from any job for any reason, did you quit after being told that you would be fired, did you leave any job by mutual agreement be c ause of specific pro blems, or were you debarred from Federal e m plo yment by the Office of Personnel Management or any other Federal agency? If “YES,” use item 16 to provide the date, an explanation of the pro b lem, reason for leaving, and the employer’s name and address.
Resp’t’s App. 20. H ardison ans wered “no ” to that question without revealing his involuntary termination from ALM. I

d. He signed the form manually and certified that his answers were “true, correct, c omplete, and made in good faith. ” I d. at 21.HARDISON v. OPM 3

On June 2, 2013, the Department of the Interior a ppointed Hardison to a temporary position as a Maint enance Worker with the National Park Service (“NPS”)

. On June 3, 2013

, during new -employee in

- processing, he signed Form OF 306 a second time without changing his answer to Question 12

. Id. at 37

– 38

. In Sept ember 2013, Hardison submitted Form OF 306 to apply for anoth er F ederal position ; h e again answer ed “no” to Ques tion 12 and signed the form a third time

. Id. at 40

– 41

. As part of the Federal hiring process, NPS requested a background investigation

. In October 2013, OPM notified Hardison that its investigation un covered “a serious question concerning [his] suitability for Federal service” relating to his “[ m] isconduct or negligence in employment” with ALM and his “ [m] aterial, intention al false state ment ” on Form OF 306. Id. at 42

. He respon ded to those charges

. After considering his response s , OPM decided to separate him from Fed eral service, c ancel his eligibilities, and debar him from competition for or appointment to any covered position for three years. Id.
at 58. On March 25, 2014, Hardison was separated from Federal service . He then ap pealed to the Board.
The Administrative Judge (“AJ”) issued an initial d ecision affirming OPM’s decision

. Decision at 1. First, t he AJ found that Hardison engaged in misconduct or negl igence in employment because it was undisputed that he was terminated from ALM for excessive absences and his absenteeism constituted employment misconduct. Id. at 6. Second, the AJ noted that Hardi son did not challenge the finding that he failed to disc lose his termination from ALM on Form OF 306 ; instead, he argued that the mi stake was unintentional

. Id. at 9. The AJ found , however, that he “was on notice and was told to complete a new OF 306 with new, updated information” on June 3, 2013, id. at 9

– 10, that he signed the form physically “with wet signature” on all three occasions

, id. at 10, and that “his omission of a significant fact (not just omission, butHARDISON v. OPM 4

affirmative statement to the contrary) relating to term ination from employment was repeated multiple times,” id

. The AJ thus agreed with OPM that Hardis on’s failure to correct and update Form OF 306 was intentional. Id. Accordingly, t he AJ found that OPM proved both charges by a preponderance of the evidence

. Hardison did not file a petition for review by the full Board, and the AJ’s decision thus became the final dec ision of the Board. Hardison timely appealed from the Board’s decision to this court. We have jurisdiction p u rsuant to 28 U.S.C. § 1295(a)(9).

D ISCUSSION The scope o f our review in an appeal from a Board d ecision is limited. We may only set aside the Board’s deci sion if it wa s “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance wi th law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupport ed by substantial evidence.” 5 U.S.C. § 7703(c). “S ubstantial evidence ” is “ such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Dickey v. Office of Pers. Mgmt. , 419 F.3d 1336, 1339 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB , 305 U.S. 197, 229 (1938))

. Hardison argues that he did not intentionally falsify his answer to Question 12 on Form OF 306. He mai ntains that the form was completed before his termina tion from ALM and that he then used the same form for var ious job applications . He asserts that his failure to update the form was merely an oversight

. The government responds that subst antial evidence supports the Board’s finding that Hardison intentionally omitted his adverse employment history on Form OF 306

. Additionally, t he government contends that OPM’s action was also based

on misconduct or negligence in employment that Hardison does not challenge on appeal

.HARDISON v. OPM 5

We agree with the government that substantial ev idence supports the Board’s finding that Hardison made material, intentional false statements on Form OF 306

. It is undisputed that , after he was involuntarily termina ted from employment with ALM, Hardison signed and su bmitted Form OF 306 on three occasions without updating the form to reveal the involuntary termi nation

. Intent to deceive may be proven directly or derived from circu mstantial evidence. Naekel v. Dep’t of Transp

. , 782 F.2d 975, 978 (Fed. Cir. 1986). As the Board found, on each of those occasions, he manually signed the form with a “wet” signature and certif ied that his answers were true, co rrect, complete, and made in good faith

. Decision at 10. T he Board foun d that those certifying signatures support a finding that he signed the forms with the intent to conceal his adv erse employment history

. Id. Moreover, substantial evidence supports the Board’s finding that Hardi son was on notice that he ought to update F orm OF 306 with new information and certify that it was correct at the time he entered service on June 3, 2013

. Id. at 9

– 10. We therefore conclude that substantial evidence supports the Board’s finding that Hardison intentionally omitted his adverse employment history with ALM on Form OF 306. The Board th us did not err in sustaining OPM’s charge of m aterial, intentional false statement

. Additionally , w e agree with the government that OPM’s decision was also supported by the separate charge of miscond uct or negligence in employment for excessive absences, which Hardison does not challenge on appeal. As the Board noted, there are few things more basic to the employer- employee relationship than the employee’s duty to report to work as expected

. Id. at 6. The Board thus did not err in finding that Hardison’s excessive absente eism at ALM constituted employment misconduct. We therefore conclude that the Board correctly affirmed OPM’s decision on this additional ground.HARDISON v. OPM 6

C ONCLUSION

We have considered Hardi son’s remaining arguments

, but find them unpersuasive. For the foregoing reasons, the decision of the Board is affirmed.

AFFIRMED

C OSTS

No costs.