Childress v. Dep't of the Treasury
| Decision Date | 27 March 2023 |
| Docket Number | CH-0752-14-0190-B-1 |
| Parties | NICOLE E. CHILDRESS, Appellant, v. DEPARTMENT OF THE TREASURY, Agency. |
| Court | Merit Systems Protection Board |
THIS FINAL ORDER IS NONPRECEDENTIAL [1]
Nicole E. Childress, Saint Louis, Missouri, pro se.
Diana R. Stallard, Esquire, Dallas, Texas, for the agency.
BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member [2]
¶ 1 The appellant has filed a petition for review of the remand initial decision, which sustained her removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial 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 administrative 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. 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, 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 expressly MODIFIED by this Final Order to find that the removal penalty is reasonable, we AFFIRM the remand initial decision.
The initial appeal
¶ 2 The agency removed the appellant from the GS-8 seasonal Contact Representative[3] position with the Internal Revenue Service (IRS) based on the charge of receiving Government funds to which she was not entitled. Childress v. Department of the Treasury, MSPB Docket No. CH-0752-14-0190-I-1, Final Order, ¶ 2 (Apr. 19, 2016). The agency specified that, during 6 separate weeks in 2009, 2010, and 2011, the appellant received unemployment benefits to which she was not entitled because of her earnings from the IRS. Id. The appellant appealed the agency's action and, during the course of proceedings below, had alleged a number of affirmative defenses. Id. ¶ 3 The administrative judge found that the agency proved the charged misconduct, that the appellant raised a single affirmative defense-that of harmful procedural error based on the agency's alleged violation of the Internal Revenue Manual (IRM)-and that the appellant failed to prove her claim. Id., ¶¶ 3, 6-7. The administrative judge also found that, contrary to the appellant's assertions, the notice of proposed removal complied with the IRM, the agency established nexus between the proven misconduct and the efficiency of the service, and the removal penalty was within the bounds of reasonableness. Id.
¶ 4 In her petition for review, the appellant contended that the administrative judge erred in her findings regarding nexus and penalty. The Board found that the administrative judge should have provided notice to the appellant of the relevant burdens and elements of proof for all of her affirmative defenses raised below. Id., ¶ 8. The Board vacated the administrative judge's findings regarding nexus and penalty but did not disturb her finding that the agency proved the charged misconduct. The Board remanded the case to allow development of the record on the appellant's discrimination, harmful procedural error, "not in accordance with law," and due process claims. Id.
The remand appeal
¶ 5 On remand, the appellant alleged only that the agency's action was not in accordance with law in violation of 5 U.S.C. § 7513. Childress v. Department of the Treasury, MSPB Docket No. CH-0752-14-0190-B-1, Appeal File (B-1 AF), Tab 27, Remand Initial Decision (RID) at 4. She withdrew all of her other affirmative defenses.[4] Id. ¶ 6 The administrative judge found that, in cases of off-duty misconduct such as the appellant's, the agency meets its burden under 5 U.S.C. § 7513 by establishing nexus between its grounds for an adverse personnel action and either the employee's ability to accomplish his or her duties satisfactorily or some other legitimate Government interest promoting the efficiency of the service. RID at 6. She found that the agency established nexus here by showing through the testimony of the deciding official that the appellant's conduct adversely affected management's trust and confidence in her job performance and interfered with the agency's mission of administering the nation's tax system. RID at 6-7. She found that the appellant's personal integrity in honestly and accurately reporting information to Governmental entities directly impacts the agency's mission. RID at 7-8. In the remand initial decision, the administrative judge did not address whether the penalty was reasonable.
¶ 7 In her current petition for review, the appellant argues that the agency failed to show nexus between her misconduct and the efficiency of the service. Childress v. Department of the Treasury, MSPB Docket No. CH-0752-14-0190-B-1, Petition for Review (PFR) File, Tab 1. She contends that the deciding official provided no evidence that the agency had lost trust in her or that her misconduct adversely affected the agency's mission. Id. at 8-9. Rather, the appellant asserts that the evidence is to the contrary. Id. at 6-9. For example, she states that after her proposed removal, she was selected for a Contact Representative Classroom Instructor position,[5] showing that the agency had not lost trust and confidence in her. Id. at 7. She also argues that the fact that she continued to work her normal duties and received exceptional performance ratings after the agency learned of her misconduct shows that the agency had not lost trust in her and that her misconduct did not interfere with the agency's mission.[6] Id. at 7-9. She asserts that she had no face-to-face interaction with the taxpaying public and was not a public figure designated to speak on behalf of the agency. Id. at 7.
¶ 8 The appellant also reiterates her assertion that she was subjected to a disparate penalty. PFR File, Tab 1 at 10-11. She contends that one of the employees to whom she compared herself received a 30-day suspension for essentially the same misconduct as hers. Additionally, she asserts that the penalty was not within the bounds of reasonableness. Id., at 11. She asserts that the deciding official admitted to not considering relevant Douglas factors.[7] Id. She contends that she is a candidate for rehabilitation because she took responsibility for her misconduct, showed that she had repaid the wrongly received unemployment payments, and had an excellent work record. Id.
The agency met its burden to establish nexus.
¶ 9 Removals appealable to the Board under 5 U.S.C §§ 7512, 7513(d), and 7701, may be taken only for such cause as will promote the efficiency of the service. 5 U.S.C. § 7513(a); see Scheffler v. Department of the Army, 117 M.S.P.R. 499, ¶ 9 (2012), aff'd, 522 Fed.Appx. 913 (Fed. Cir. 2013). An action promotes the efficiency of the service only if there is a nexus between the proven misconduct and the efficiency of the service. Id. The nexus requirement means there must be a clear and direct relationship between the articulated grounds for an adverse action and either the employee's ability to accomplish his or her duties satisfactorily or some other legitimate Government interest. Id. (citing Merritt v. Department of Justice, 6 M.S.P.R. 585, 596 (1981), modified by Kruger v. Department of Justice, 32 M.S.P.R. 71, 75 n.2 (1987)). An agency may show a nexus between off-duty misconduct and the efficiency of the service by three means: (1) a rebuttable presumption in certain egregious circumstances; (2) preponderant evidence that the misconduct adversely affects the appellant's or co-workers' job performance or the agency's trust and confidence in the appellant's job performance; or (3) preponderant evidence that the misconduct interfered with or adversely affected the agency's mission. Scheffler, 117 M.S.P.R. 499, ¶ 10; Kruger, 32 M.S.P.R. at 74.
¶10 Thus, a removal action taken against an employee such as the appellant will be sustained only if the agency can prove by preponderant evidence that it promotes the efficiency of the service. An action that does not promote the efficiency of the service is not in accordance with law and must be reversed. See generally Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 684 (1991).
¶11 As the administrative judge found, the deciding official testified that management had lost trust in the appellant's integrity to effectively fulfill the agency's mission. RID at 4, 7. Thus, the agency established that the appellant's conduct affected management's trust and confidence in her job performance.
Additionally, the agency established that the appellant's misconduct adversely affected the agency's mission. Given the agency's mission of assuring that taxpayers comply with their obligations, it is relevant that employees who advise the public about legal requirements make sound decisions that are based on policies, directives, and law. Royster v. Department of Justice, 58 M.S.P.R. 495 500 (1993) (); Kruger, 32 M.S.P.R. at 75-76 (same). We find that, under the circumstances of this case, the appellant's poor decisions regarding the...
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