UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TYRONE M. CARR,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-0752-13-1561-I-1

DATE: September 30, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

William A. Jaeger, Esquire, Chicago, Illinois, for the appellant.

Timothy B. Morgan, Esquire, Chicago, Illinois, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

reversed the appellant’s removal. 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 interpretation of statute or regulation or 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The agency removed the appellant from his position as a File Clerk based 

upon charges of solicitation of funds from a veteran beneficiary, threatening a 

veteran beneficiary, abusing a veteran patient beneficiary, and conduct 

unbecoming a federal employee. Initial Appeal File (IAF), Tab 3, Subtabs 4a, 4c. 

The agency charged that the appellant had solicited money from the alleged 

victim in exchange for assisting the victim with his benefits claim, and that the 

appellant referenced his status as a “gang chief” in order to intimidate the alleged 

victim. Id., Subtab 4c. The appellant appealed his removal, alleging that he 

should not have been removed based solely on hearsay evidence from one person

(i.e., the alleged victim). IAF, Tab 1. After holding a hearing, the administrative 

judge reversed the appellant’s removal, finding that the agency based the 

appellant’s removal almost entirely on uncorroborated hearsay, and that based 

upon the hearsay and non-hearsay evidence, the agency had not proven any of its 

four charges by preponderant evidence. IAF, Tab 27, Initial Decision (ID) at 14.
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¶3 The agency has petitioned for review, challenging both the administrative 

judge’s credibility determinations and the weight that she accorded to the 

witnesses’ testimony. Petition for Review (PFR) File, Tab 3 at 11-22. 

Additionally, the agency argues that the administrative judge did not properly 

analyze hearsay evidence, and that she mischaracterized text message and 

voicemail evidence as hearsay. Id. at 14, 18-20. Finally, the agency challenges 

several of the administrative judge’s factual conclusions and procedural rulings. 

Id. at 12-15. The appellant has responded in opposition to the petition for review. 

PFR File, Tab 11.

¶4 The Board will sustain an agency’s charge only if it is supported by a 

preponderance of the evidence. Jordan v. Department of the 

Treasury, 102 M.S.P.R. 390, ¶ 7 (2006). A preponderance of the evidence is the

degree of relevant evidence that 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. 5 C.F.R. § 1201.56(c)(2). 

¶5 At the hearing, agency witnesses, including the detective, the special agent, 

the social worker, the social worker’s supervisor, and the deciding official, 

testified based upon hearsay from the alleged victim. Hearing Transcript 

at 8-197. The record also contains a two-sentence statement from the alleged 

victim. IAF, Tab 3, Subtab 4d at 11. The Board may find that hearsay evidence

is sufficient to sustain an adverse action charge. Vaughn v. U.S. Postal 

Service, 109 M.S.P.R. 469, ¶ 9 (2008), aff’d, 315 F. App’x 305 (Fed. Cir. 2009). 

However, when an agency relies on hearsay evidence to support its action, the 

administrative judge must first determine whether such evidence has significant 

probative value according to the circumstances of the case. Luten v. Office of 

Personnel Management, 110 M.S.P.R. 667, ¶ 12 (2009). If so, the administrative 

judge must then determine whether the value of that hearsay evidence is 

outweighed by the other evidence of record, including the appellant’s 

submissions. Id.
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¶6 The following factors may be included in considering the probative value of 

this hearsay evidence: (1) the availability of persons with firsthand knowledge to 

testify at the hearing; (2) whether the statements of the out-of-court declarants 

were signed or in affidavit form, and whether anyone witnessed the signing; 

(3) the agency’s explanation for failing to obtain signed or sworn statements; 

(4) whether the declarants were disinterested witnesses to the events, and whether 

the statements were routinely made; (5) consistency of declarants’ accounts with 

other information in the case, internal consistency, and their consistency with 

each other; (6) whether corroboration for statements can otherwise be found in 

the agency record; (7) the absence of contradictory evidence; and (8) the 

credibility of the declarant when he made the statement attributed to him. 

Vaughn, 109 M.S.P.R. 469, ¶ 9. The administrative judge focused primarily on 

the last factor, finding that the alleged victim was not a credible declarant due to 

his history of substance abuse and mental illness. ID at 12, 14. With respect to 

the first factor regarding the availability of persons with firsthand knowledge to 

testify at the hearing, the administrative judge considered the unavailability of the 

alleged victim due to the fact that the agency lost contact with him. However, she 

found that the agency should have supported its case by contacting other agency 

patients who, according to testimony regarding statements by the alleged victim, 

knew of the appellant’s gang affiliation and may have corroborated the statements 

of the alleged victim. ID at 12. 

¶7 As to the second and third factors concerning out-of-court statements, the 

agency obtained a signed and witnessed statement from the alleged victim. IAF, 

Tab 3, Subtab 4d at 11-12. However, the administrative judge noted that this was 

the only written statement from the alleged victim and it was only two sentences 

long. She did not find that this statement was particularly credible and did not 

accord great weight to the statement. ID at 8. Concerning the sixth factor, the

administrative judge concluded that corroboration for the alleged victim’s 

statements could not otherwise be found in the agency record. She found that 
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testimony about the text message and voicemail messages did not corroborate the 

alleged victim’s claims because she found that the messages were not of a 

threatening nature and were not as frequent as claimed by the alleged victim. ID 

at 11. She also considered the fact that the appellant had not accessed the alleged 

victim’s benefits file as supportive of a finding that the appellant had not asked 

the victim for money in exchange for assistance with his benefits claim. ID at 12. 

Regarding the seventh factor concerning contradictory evidence, the 

administrative judge considered that the hearsay evidence was inconsistent with 

the testimony of the appellant and other witnesses. She gave less weight to the 

hearsay evidence and instead found that the appellant and the alleged victim had 

an amicable relationship. ID at 10-11. Considering this analysis, we reject the 

agency’s argument that the administrative judge did not properly assess the 

hearsay evidence. We agree with the administrative judge’s finding that the 

hearsay evidence in this case was outweighed by the other evidence of record.

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¶8 We also see no reason to disturb the administrative judge’s credibility 

determinations. 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; 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). 

The administrative judge found that all of the witnesses were credible. ID at 6. 

However, in particular, the administrative judge found that the appellant was 

credible when he testified about his former gang involvement and his attempts to 

 2 Although the agency argued that the detective’s testimony concerning a text message

and voicemail messages did not constitute hearsay, PFR File, Tab 3 at 13, we agree 

with the administrative judge’s ruling that this was indeed hearsay, see Taylor v. U.S. 

Postal Service, 75 M.S.P.R. 322, 325 (1997) (citing Fed. R. Evid. 801(c), which 

defines hearsay as “a statement, other than one made by the declarant while testifying 

at the trial or hearing, offered in evidence to prove the truth of the matter asserted”).
6

assist the alleged victim as opposed to threaten him and solicit funds. ID at 13. 

The administrative judge also found that the testimony of other witnesses,

including the appellant’s coworkers, was credible. ID at 9-11. We find no reason 

to disturb the administrative judge’s findings.

¶9 The agency has argued that the administrative judge erred by failing to fully 

consider the testimony and statements of the agency clinical staff. PFR File, 

Tab 3 at 21. We disagree. The administrative judge did indeed consider the 

testimony of the clinical staff. ID at 8-9. Additionally, the administrative judge 

is not required to fully address all of the evidence of record in her decision and 

her failure to discuss evidence does not mean that she did not consider it. See

Hooper v. Department of the Interior, 120 M.S.P.R. 658, ¶ 14 (2014). We have 

considered the agency’s remaining arguments. PFR File, Tab 3. However, these 

arguments present no basis for disturbing the initial decision. The administrative 

judge properly found that the agency failed to prove its charges and properly 

reversed the removal action. 3

ORDER

¶10 We ORDER the agency to cancel the removal and to retroactively restore 

the appellant effective June 30, 2013. See Kerr v. National Endowment for the 

 3 The appellant has filed a petition for enforcement concerning interim relief in this 

case, stating that he has not yet received his salary and benefits as was required by the 

administrative judge’s order. Compliance File (CF), Tab 1. The agency responded that 

the appellant would soon be reinstated to a nonduty pay status retroactive to the 

administrative judge’s decision. CF, Tab 5. We find that this compliance issue is 

moot. The agency must instead comply with the order contained herein. See Aquino v. 

Department of Homeland Security, 121 M.S.P.R. 35, ¶¶ 6-8 (2014) (the Board did not 

exercise its discretion to dismiss the agency’s petition for review due to the agency’s 

failure to comply with the interim relief order by not reinstating the appellant on an 

interim basis because the agency had provided the appellant with compensation and 

benefits since the date of the initial decision and because the issue of the agency’s 

compliance with the interim relief order was moot by virtue of the Board’s final 

decision ordering the appellant reinstated to employment).
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Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no 

later than 20 days after the date of this decision.

¶11 We also ORDER the agency to pay the appellant the correct amount of back 

pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal 

Service Regulations, as appropriate, no later than 60 calendar days after the date 

of this decision. We ORDER the appellant to cooperate in good faith in the 

agency’s efforts to calculate the amount of back pay, interest, and benefits due, 

and to provide all necessary information the agency requests to help it carry out 

the Board’s Order. If there is a dispute about the amount of back pay, interest 

due, and/or other benefits, we ORDER the agency to pay the appellant the 

undisputed amount no later than 60 calendar days after the date of this decision. 

¶12 We further ORDER the agency to tell the appellant promptly in writing 

when it believes it has fully carried out the Board’s Order and of the actions it 

took to carry out the Board’s Order. The appellant, if not notified, should ask the 

agency about its progress. See 5 C.F.R. § 1201.181(b). 

¶13 No later than 30 days after the agency tells the appellant that it has fully 

carried out the Board’s Order, the appellant may file a petition for enforcement 

with the office that issued the initial decision on this appeal if the appellant 

believes that the agency did not fully carry out the Board’s Order. The petition 

should contain specific reasons why the appellant believes that the agency has not 

fully carried out the Board’s Order, and should include the dates and results of 

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶14 For agencies whose payroll is administered by either the National Finance 

Center of the Department of Agriculture (NFC) or the Defense Finance and 

Accounting Service (DFAS), two lists of the information and documentation 

necessary to process payments and adjustments resulting from a Board decision 

are attached. The agency is ORDERED to timely provide DFAS or NFC with all 

documentation necessary to process payments and adjustments resulting from the 
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Board’s decision in accordance with the attached lists so that payment can be 

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney 

fees and costs. To be paid, you must meet the requirements set out at Title 5 of 

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The 

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If 

you believe you meet these requirements, you must file a motion for attorney fees 

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You 

must file your attorney fees motion with the office that issued the initial decision 

on your appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. 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 

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 
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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, http://www.mspb.gov/appeals/uscode.htm. 

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
DFAS CHECKLIST

INFORMATION REQUIRED BY DFAS IN 

ORDER TO PROCESS PAYMENTS AGREED 

UPON IN SETTLEMENT CASES OR AS 

ORDERED BY THE MERIT SYSTEMS 

PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT 

CASES 

CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL 

OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address 

and POC to send.

2. Statement that employee was counseled concerning Health Benefits and TSP and the 

election forms if necessary.

3. Statement concerning entitlement to overtime, night differential, shift premium, 

Sunday Premium, etc, with number of hours and dates for each entitlement.

4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay 

System), a statement certifying any lump sum payment with number of hours and 

amount paid and/or any severance pay that was paid with dollar amount.

5. Statement if interest is payable with beginning date of accrual.

6. Corrected Time and Attendance if applicable.

ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:

1. Copy of Settlement Agreement and/or the MSPB Order. 

2. Corrected or cancelled SF 50's. 

3. Election forms for Health Benefits and/or TSP if applicable. 

4. Statement certified to be accurate by the employee which includes: 

 a. Outside earnings with copies of W2's or statement from employer.

b. Statement that employee was ready, willing and able to work during the period. 

c. Statement of erroneous payments employee received such as; lump sum leave, severance 

pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew 

Retirement Funds.

5. If employee was unable to work during any or part of the period involved, certification of the 

type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process 

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as 

ordered by the Merit Systems Protection Board, EEOC, and courts. 

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise 

information describing what to do in accordance with decision. 

2. The following information must be included on AD-343 for Restoration: 

 a. Employee name and social security number. 

 b. Detailed explanation of request. 

 c. Valid agency accounting. 

 d. Authorized signature (Table 63) 

 e. If interest is to be included. 

 f. Check mailing address. 

 g. Indicate if case is prior to conversion. Computations must be attached. 

 h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to 

be collected. (if applicable) 

Attachments to AD-343 

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday 

Premium, etc. with number of hours and dates for each entitlement. (if applicable) 

2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and 

amounts. 

3. Outside earnings documentation statement from agency. 

4. If employee received retirement annuity or unemployment, provide amount and address 

to return monies. 

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of 

the type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual 

Leave to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay 

Period and required data in 1-7 above. 

The following information must be included on AD-343 for Settlement Cases: (Lump 

Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) 

 a. Must provide same data as in 2, a-g above. 

 b. Prior to conversion computation must be provided. 

 c. Lump Sum amount of Settlement, and if taxable or non-taxable. 

If you have any questions or require clarification on the above, please contact NFC’s 

Payroll/Personnel Operations at 504-255-4630.