Ebron v. Dep't of Homeland Sec.

• Decision Date: 10 April 2012
• Docket Number: 2011-3173
• Parties: RONNIE L. EBRON, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

RONNIE L. EBRON, Petitioner, v.DEPARTMENT OF HOMELAND SECURITY, Respondent.

2011-3173

United States Court of Appeals for the Federal Circuit

Decided: April 10, 2012

NOTE: This disposition is nonprecedential

Petition for Review of the Merit Systems Protection Board in case no. DC-07752-11-002-I-1.

JONATHAN BELL, Law Office of Jonathan Bell, of Garden City, New York, for petitioner.

ELIZABETH M. HOSFORD, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent.With her on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and TODD HUGHES, Deputy Director.Of counsel was MICHAEL S. MACKO, Attorney.

Before PROST, MAYER, and WALLACH, Circuit Judges.

PER CURIAM.

INTRODUCTION

Ronnie L. Ebron appeals from the final decision of the Merit Systems Protection Board("Board") sustaining Mr. Ebron's removal pursuant to 5 U.S.C. § 7513 for (1) failure to meet the requirements of the position of contract specialist; (2) lack of candor; and (3) failure to provide honest and complete information.Because the Board's findings are supported by substantial evidence and not contrary to law, weaffirm.

BACKGROUND

Ebron was hired in 2005 as a temporary employee, a GS-12 Contract Specialist, with the Financial and Acquisition Management Division, Flood, Fire and Mitigation Branch of the Federal Emergency Management Agency("FEMA" or "Agency").Ebron v. Dep't of HomelandSec., No. DC-07752-11-002-I-1, 2011 M.S.P.B. LEXIS 2023, at *2 (M.S.P.B. Mar. 31, 2011).On his job application he included his degree from St. Regis University, which he received in 2001 for his "work experience, life experience, education from training[,] and certificates."He did not include the credits he had from other schools on his application.Id. at *7.In 2006, he was converted to a Career-Conditional appointment as a GS-13 Contract Specialist, a position which required the applicant to have "completed a 4-year course of study leading to a bachelor's degree."In his application for that position Ebron stated he received his bachelor's degree from St. Regis University in 2001, where he majored in "Acquisition Management."In 2008, Ebron was promoted to a GS-14 Contract Specialist position.Before his promotion to GS-14, Ebron received certification in the Federal Acquisition Certification in Contracting Program, for which an applicant must have a four-year degree or 24 credits of business classes from an accredited institution.Ebron then applied for a position at the Federal Law Enforcement Training Center("FLETC").When the FLETC discovered Ebron's degree was not from an accredited institution it notified FEMA.FEMA "proposed the appellant's removal . . . based on the charges of failure to meet the requirements of the position, lack of candor, and failure to provide honest and complete information."Id. at *2.Ebron was removed from his position in September 2010 and appealed the Agency's decision before the Board.

An Administrative Judge for the Board heard the appeal and issued an initial decision which became the final decision of the Board.The Board upheld the Agency's charges for four reasons.First, the Board found that Ebron failed to meet the requirements of his position because his position indisputably required a four year bachelor's degree from an accredited institution, and there was no evidence Ebron had achieved such a degree.Second, the Board found that because Ebron "failed to disclose [that] his diploma from St. Regis was not from an accredited institution his conduct demonstrated a lack of candor."Id. at *19.Third, the Board upheld the Agency's charge of failure to provide honest and complete information because Ebron's "conduct demonstrates he misled the [A]gency about his degree from St. Regis with the intention of deceiving or defrauding the agency" by conveying a "misleading impression with respect to material facts."Id. at *25(citations omitted).Finally, the Board held that "[a]lthough the appellant's work record is worthy of consideration, the penalty imposed is within the range of reasonableness given the egregiousness of the misconduct.[The Board found] the [A]gency properly considered the relevant factors and its disciplinary penalty did not exceed the bounds of reasonableness."Id. at *34.Ebron appeals the Board's decision that FEMA satisfied its evidentiary burden to prove the charges against him and the Board's decision that his removal was reasonable and promoted the efficiency of the service.This court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

This court has limited jurisdiction to review appeals from the Board.We affirm a Board decision unless it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence."5 U.S.C. § 7703(c);seeChadwell v. MSPB, 629 F.3d 1306, 1308(Fed. Cir.2010)."Under the substantial evidence standard of review, a court will not overturn an agency decision if it is supported by 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."'Jacobs v. Dep't of Justice, 35 F.3d 1543, 1546(Fed. Cir.1994)(quotingConsol. Edison Co. v. NLRB, 203 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126(1938)).

I.

Ebron argues that there was not substantial evidence to support the Board's decision to uphold the charges of lack of candor and failure to provide honest and complete information.First, Ebron asserts that the Agency failed to demonstrate that Ebron knew in 2005 that St. Regis was not an accredited institution, and he contends that he did not know about St. Regis's lack of accreditation until 2010.Additionally, Ebron argues that he had the educational requirements for the position he initially applied for so he had "no reason, interest, or motive to lie about his education" and he"believed" that he"possessed a proper degree"; therefore, he argues, the charges of lack of candor and failure to provide honest and complete information are not supported by substantial evidence.

First, the Board considered when Ebron learned that St. Regis was not an accredited institution: two witnesses testified that Ebron had admitted he knew St. Regis was not accredited in 2005, a third witness's testimony did not contradict their statements (she testified only that she"did not hear" Ebron make such a statement), and the Board held that Ebron's testimony to the contrary lacked credibility.The Board weighed Ebron's testimony and that of the other witnesses and concluded that the testimony supporting Ebron's position was less credible, finding that Ebron knew St. Regis was not accredited."The determination of the credibility of the witnesses is within the discretion of the presiding official who heard their testimony and saw their demeanor."Griessenauer v. Dep't of Energy, 754 F.2d 361, 364(Fed. Cir.1985).The Board's determination of witnesses credibility is "virtually unreviewable."Hambsch v. Dep't of Treasury, 796 F.2d 430, 436(Fed. Cir.1986).Therefore, we will not reweigh the evidence; we accept the Board's finding that Ebron knew St. Regis was not accredited in 2005.

The Board's decision to uphold the charge of lack of candor is supported by substantial evidence.The Board concluded that despite knowing that his St. Regis diploma did not meet the qualifications necessary for the jobs, Ebron repeatedly included it in his applications and represented that the information was accurate.¹To establish lack of candor, the Board need not prove there was intent to deceive but only that a person failed "to disclose something that, in the circumstances, should have been disclosed in order to make the given statement accurate and complete."Ludlum v. Dep't of Justice, 278 F.3d 1280, 1284(Fed. Cir.2002).Given the Board's conclusion that Ebron knew his degree was inadequate,and given the requirement for the jobs is a four year degree from an accredited institution, there is substantial evidence to uphold the charge of lack of candor.

Similarly, the Board's decision to uphold the charge of failure to provide honest and complete information is supported by substantial evidence.Such a charge "may be sustained only if the agency proves by preponderant evidence that the employee knowingly made false statements with the intention of deceiving or defrauding the agency."Redschlag v. Dep't of the Army, 89 M.S.P.R. 589, 607(2001)."[A]n incorrect statement coupled with the lack of any credible explanation or contrary action by an employee has been held to constitute circumstantial evidence of intention to deceive."Stein v. U.S. Postal Service, 57 M.S.P.R. 434, 439(1993).Ebron wrote in a 2010 memo that he was unaware that St. Regis was not accredited until after being notified by the FLETC.The Agency found that this representation was misleading because it conflicted with other statements Ebron made, including in his application to the FLETC where he stated that this degree was not from an accredited college or university.The Board held that Ebron's "conduct demonstrates he mislead...