UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SPECIAL COUNSEL, ) DOCKET NUMBER

Petitioner, ) HQ12068510034

v. )

SUE ABNEY ROSS and ) DATE: ^ g 6 ^7

SCOTT A. CATLEDGE, )

Respondents. )

John p. Gideg, Esquire, for petitioner.

Sue Abney Ross and Scott A. Catledge. pro se.

1EZPJES

Daniel R. Levinson, Chairman

Maria L. Johnson, Vice Chairman

Dennis K. Devaney, Member

FINAL DECISION AND ORDER

This case is before the Board upon the August 7, 1986

Recommended Decision (R.D.) of Chief Administrative Law Judge

(CALJ) Reidy, issued pursuant to an Office of Special Counsel

(OSC) complaint alleging that prohibited personnel practices had

been committed by respondents Catledge and Ross. Both parties

filed exceptions to the decision and replies to the exceptions.
51 Fed. Reg. 25,160 (1966) (to be codified at 5 C.F.R. §

1201.129).

 l

The Board has carefully considered the Recommended Decision

and the record in light of the exceptions, responses and the

post-hearing briefs. We AFFIRM and ADOPT, AS MODIFIED HEREIN,

the CALJ's findings of fact and conclusions of law, and MODIFY

the penalties imposed.

I. Background •

The OSC's complaint, brought pursuant to 5 U.S.C.

§§ 1206(a), (e)(l)(D), and (g) , charged respondents with

violations of 5 U.S.C. § 2302(b)(4), (5), and (6)2 and 5 C.F.R.

On July 10, 1986, the Board republished its entire rules of

practice and procedure in the Federal Register. For ease of

reference, citations will be to the Board's regulations at 5

C.F.R. Part 1201. However, parties should refer to 51 Fed. Reg.

25,146-72 (1986) for the text of all references to this part.

2 5 U.S.C. Si 2302(b)(4), (5) and (5) provides

(b) Any employee who has authority to take, direct

others to take, recommend, or approve any personnel

action, shall not, with respect to such authority —

* * * *

(4) deceive or willfully obstruct any person with

respect to such person's right to compete for

employment?

(5) influence any person to withdraw from

competition for any position for the purpose of

improving or injuring the prospects of any other

person for employment?

(6) grant any preference or advantage not

authorized by law, rule or regulation to any

employee or applicant for employment (including

defining the scope or manner of competition or the

requirements for any position) for the purpose of

improving or injuring the prospects of any

particular person for employment.
§§ 4.3, 330.601 and 735.209.3 These violations were charged in

connection with the establishment of and selection for two

Secretary, GS-4, positions in 1983 and 1984, and center around

the attempt to place a certain employee in a particular position.

Briefly, the facts as found by the CAU are as follows. R.D.

at 2-4. Respondents Ross and Cat ledge worked at the Veterans

Administration Outpatient Clinic (clinic) in Las Vegas, Nevada.

Ross was the Personnel Officer, GS-11, for the agency; Catledge

was her subordinate as a Personnel Management Specialist, GS-9.

Due to a planned 1984 computer installation, the Director of the

clinic asked a current temporary employee, Melissa Hughes, in

3 5 C.F.R. § 4.3, "Prohibition against securing withdrawal from

competition,w provides:

Ho person shall influence another person to withdraw

from competition for any position in the competitive

service for the purpose of either improving or injuring

the prospects of any applicant for employment.

5 C.F.R. § 330.601, "Withdrawal from competition," provides

An applicant for competitive examination, an eligible

on a register, and an officer or employee in the

executive branch of the Government shall not persuade,

induce, or coerce, or attempt to persuade, induce, or

coerce, directly or indirectly, a prospective applicant

to withhold filing application, or an applicant or

eligible to withdraw from competition or eligibility,

for a position in the competitive service, for the

purpose of improving or injuring the prospects of an

applicant or el4gible for appointment. 0PM shall

cancel the application or eligibility of an applicant

or eligible who violates this section, and shall impose

such other penalty as it considers appropriate.

5 C.F.R. I 735.209, "General conduct prejudicial to the

Government/1 provides:

An employee shall not engage in criminal, infamous,

dishonest, immoral, or notoriously disgraceful conduct,

or other conduct prejudicial to the Government.
September, 1983, to perform the duties of coordinator and site

manager for the new system. Also in September, 1983, the

Director asked Ross to develop a job description for the

coordinator/site manager position and to draft the position

description in such a way that Hughes could qualify for it.

The job description was prepared and classified, Secretary

I, GS-4, 0PM was asked to forward a certificate of eligibles, and

Hughes was "name-requested* for the position. In OPM's

certificate Hughes was ranked the lowest of five candidates. In

December, Ross sent the other candidates a letter describing the

computer duties and Catledge telephoned them, to discuss the

duties and determine their availability. Catledge recorded that

two candidates had declined consideration, and then he selected

Hughes. Upon OPM's review of the selection process, 0PM found

irregularities, disallowed Hughes' selection, and directed the

clinic to reconstruct the certificate.

A new position description was developed, Secretary II, and

in April, 1984, Ross again requested a certificate of eligibles

from 0PM. OPM's second certificate of five candidates did not

include Hughes. Ross reported to 0PM that fewer than three of

the candidates were available and requested a supplemental

certificate. 0PM issued a supplemental certificate of three

candidates, with Hughes being the lowest ranked one. In July,

1984, Ross selected Hughes. Hughes was terminated in August,

1984, at the direction of OPM based upon the clinic's alleged

improper appointment process.
s

After a lengthy hearing and post-hearing briefs, the CALJ

found that Catledge violated 5 U.S.C. §§ 2302(b)(4) (Count 1) ,

(b) (5) (Count 5, one of two allegations), (b) (6) (Count 10, two

of four allegations), and 5 C.F,R. §§ 4.3 (Count 5), 330.601

(Count 6), and 735.209 (Count 2).4 The CALJ also found that Ross

aau violated 5 U.S.C. §§ 2302 (b)(4) (Count 7), and (b)(6) (Count

8), and 5 C.F.R.i 735.209 (Count 9). Based upon the sustained

charges, the CAU recommended that Catledge be demoted from a

GS-9 to a G3-7 for a period of three years and Ross be suspended

for 45 days.

Since the Recommended Decision in this case was issued, the

Federal Circuit issued Homer v. Merit Systems Protection Board,

815 F.2d 668 (Fed. Cir. 1987), rev'g Special Counsel v. Williams,

27 M.S.P.R. 97 (1985)(hereafter Williams). Williams examined the

Special Counsel's authority to bring charges of alleged

violations of regulations pursuant to 5 U.S.C.

§ 1206(e)(1)(D) and determined that, in the circumstances of that

case, the Special Counsel's section 1206(e)(1)(D) authority did

not extend to the alleged violations of 5 C.F.R. Part 735. In

the instant case, two of the Special Counsel's charges, Counts 3

and 9, involve alleged violations of 5 C.F.R. § 735.209. These

charges relate to the parties' alleged dishonest conduct of

misrepresenting the facts to the Special Counsel investigators.

4 The CAKT's interpretation of and findings regarding

5 C.F.R. §§ 4.3 and 330.601 comport with those of the court in

Filiberti v. Merit Systems Protection Board, 804 F.2d 1504 (9th

Cir. 1986) .
6

The parties have not had an opportunity to brief the

applicability of Williams to this case. However, because the

gravamen of the alleged misconduct of both respondents is the

prohibited personnel practice charges and because the Board

sustains those charges, see 7 and 9, infra, the Board finds that

the prohibited personnel practices are sufficient to sustain the

penalties. Thus, the Board need not address whether the Federal

Circuit's holding in Williams prohibits the Special Counsel's

charges of section 735.209 in this case.

II. Analysis

Respondent Catledge takes exception to the findings and

credibility determinations of the CAU but only cites to the

record once in his attempt to show that the CALJ drew the

incorrect conclusion from the evidence. Respondent Catledge's

exceptions simply disagree with the CALJ's findings and are a

rearguaent of the evidence presented to the CALJ in his posthearing brief, A mere disagreement with the adjudicator's

findings, without specific record citations and persuasive

argument of error, is insufficient for the Board to overturn the

findings. See Special Counsel v, Boban, 24 M.S.P.R. 154 (1984).

We find that the CALJ dealt adequately with Catledge's arguments

in the Recommended Decision, and, accordingly, these exceptions

are rejected for the reasons given by the CALJ.

In one instance, Catledge cites record evidence to argue

that the CALJ erred when he found that Catledge falsely recorded

that two candidates for the secretary position declined

consideration. The CALJ made this finding based upon testimony
and an OPM memorandum (C-49),s

 quoted in part in the Recommended

Decision at 15. Catledge argues that the CALJ misinterpreted the

OPM memorandum, and that the memorandum actually supports his

claim that he did not falsely report to OPM two declinations. We

disagree with this contention and affirm the CALJ's

interpretation of the OPM memorandum, i.e. , that the memorandum

simply states what had been recounted to OPM and does not reflect

OPM's determination that the alleged declinations were accurate.

Catledge made these arguments before the CALJ, who rejected

them. We agree with the CAU findings. We, therefore, deny

respondent Catledge's exceptions in their entirety and sustain

the charges.6

Respondent Ross excepts to the CALJ's credibility

determination in which he found that she 'intentionally failed to

mail the OF-5 forms to the four candidates in question."

Recommended Decision at 28. For the most part, Ross simply

disagrees with the CAKT's weighing of the testimony and

documentary evidence which resulted in the determination that

5 C-49 refers to complainant's exhibit number 49; similar

narrative of the same events is recorded in C-38 and C-55.

Catledge now argues that his *5 years' experience in the

personnel field,* R.D. at 11, was six years prior to his 1983 reentry into the federal service. Resp. Catledge Exceptions at 1.

This argument was not made before the CALJ, and it is not new and

material evidence that was not known before. Thus, the Board

will not consider this newly fashioned argument. Cf. Meglio v.

Merit Systems Protection Board, 758 F.2d 1576 (Fed. Cir. 1984).
Ross's testimony was less credible.7 She does not cite to the

record to support her allegations of error. As stated earlier,

mere disagreement with the CALJ's findings, without specific

record citations to support alleged errors, is not sufficient to

reverse the CALJ's findings, Hoban, supra.

On "the issue of credibility, respondent Ross correctly

states that the Board may substitute its own judgment for that of

the .CALJ when credibility determinations rest upon "articulated

rationales for disbelieving the testimony" based upon the record

evidence, rather than the demeanor of witnesses. Cochran v,

Department of Justice, INS, 16 M.S.P.R. 343, 346 (1983); Reply to

Special Counsel's Exceptions to Recommended Decision at 3.

However, the Board will not substitute its judgment unless

"substantial questions exist with regard to the presiding

official's credibility resolutions.* Id. See also Jackson v.

Veterans Administration, 768 F.2d 1325 (Fed. Cir. 1985), citing

Universal Camera Corp, v, fJLRS{ 340 U.S. 474 (1951) (Board not

free simply to disagree with fact-finder). In her exceptions,

Ross simply argues anew the arguments presented to the CALJ. We

find that the CALJ properly weighed the testimony and documentary

7 At one point, respondent Koss challenges the CALJ's finding

that she falsely reported to 0PM that a candidate was not

interested in the position because the "evidence is not clear and

convincing." Exceptions at 3. This is not the appropriate

standard. The CALJ sustains a charge upon a preponderance of the

evidence, 5 C.F.R. § 1201.56(a)(ii). Preponderance of the

evidence is defined at section 1201,56(c) (2) as: »'[t]hat degree

of relevant evidence which a reasonable person, considering the

record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue."
evidence and found Ross's explanations wanting. We, therefore,

deny respondent Ross's exceptions and sustain the charges.

The OSC excepted only to -the penalty imposed upon respondent

Ross, arguing that the penalty is too light in relation to the

sustained conduct — intentionally failing t.o mail inquiries to

four candidates concerning their availability for a position,

subsequently falsely reporting to the Office of Personnel

Management (OPM) the status of certain candidates, and making

false statements during the OSC investigation -— and is

inconsistent with the penalty imposed upon Catledge. We agree.

We believe that, upon the sustained conduct and in view of

the fact that Ross was Catledge's supervisor,

 8 the appropriate

penalty would be a one-grade demotion for a minimum period of one

year.

As to the penalty imposed upon Catledge, Catledge states in

his exceptions that he is now a GS-11 and the imposed penalty

would be a reduction of four grades. Since it was clearly the

intent of the CAKF to impose a two-grade reduction, we hold that

o

Record evidence demonstrates that Ross was aware of at least

some of Catledge's activities relating to placing a certain

employee in the Secretary position (Exhibits C-48, 49, 55). As

Personnel Officer, Ross was responsible for the "entire personnel

management program" of the VA Clinic. C-S9, Transcript at 7,

Interview of Sue Abney Ross. As a supervisor, Ross should be

held to a high standard of accountability for her actions, active

or passive. See Brown v. Department of Transportation, FAA, 735

F.2d 543 (Fed. Cir. 1985)(supervisory position taken into account

in finding violation and appropriate penalty) ; Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305 (1981) (employee's

job level and type of employment, including supervisory, and

prominence of position relevant in determining appropriate

penalty),
Catledge should be demoted to a GS-9, but only for a minimum

period of one year.

Finally, we note that, the Special Counsel's section

1206(e)(l)(D) authority to bring charges based upon allegations

of regulation violations has been limited by the Federal Circuit

in Williamsf see 5-6, infra. The extent of that limitation is

.untested. However, as to the charges that respondent Catledge

violated 5 C.F.R. §§ 4.3 (Count 5) and 330.601 (Count 6), these

allegations were duplicative of alleged prohibited personnel

practices in violation of 5 U.S.C. §§ 2302 (b) (5) and (6), which

we found to have been proven„ As we held in Special Counsel v.

Mongan, MSPB Docket No. HQ12068610004 (April 17, 1987), the

existence of more than one legal basis for a challenge to a

respondent's conduct does not justify the imposition of a greater

penalty. Therefore, even if these two legal bases for the

charges are outside the Special Counsel's section 1206(e)(1) (D)

authority under Williams, a lesser penalty would not be

justified.

III. Conclusion

Accordingly, the Board AFFIRMS the findings of fact and

conclusions of law of CALJ Reidy AS MODIFIED, and ADOPTS AS

MODIFIED, and incorporates herein, his Recommended Decision as

the final decision of the Board.

This is the final decision of the Board. The Veterans

Administration is ORDERED to reduce Sue Abney Ross from a GS-11

to a GS-10 and Scott Catledge from a GS-11 to a GS-9 for minimum

periods of one year. The Special Counsel shall file a report of
3.1

compliance with this decision with the Clerk of the Board within

30 days of the date of this Final Decision and Order.

Respondents may obtain judicial review of this Order in an

appropriate United States Court of Appeals. See 5 U.S.C. §

1207(c).

FOR THE BOARD:

Washington, D.C,

Robert £. Tailor

Clerk of the Board