                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DOLORES JEAN GOODBLANKET,                       DOCKET NUMBER
                  Appellant,                         DA-0752-14-0084-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: November 10, 2014
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Johnny Deleon, Big Spring, Texas, for the appellant.

           Kenneth S. Carroll, Esquire, Dallas, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained the appellant’s removal for unauthorized access to a medical record and
     lack of candor. Generally, we grant petitions such as this one only when: the
     initial decision contains erroneous findings of material fact; the initial decision is

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     based on an erroneous interpretation of statute or regulation or 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).

                                      BACKGROUND
¶2         The agency removed the appellant from her position as an Administrative
     Officer in the West Texas VA Health System for unauthorized access to a medical
     record and lack of candor. Initial Appeal File (IAF), Tab 6 at 17-19 (decision
     letter), 31-32 (proposal notice). The deciding official found that the appellant
     had accessed an employee’s medical record in the Computerized Patient Record
     System (CPRS) without authorization or a legitimate business reason, which
     violated agency privacy and security policies. IAF, Tab 6 at 17-19. The decision
     letter also upheld the specification in the lack of candor charge, finding that the
     appellant had testified during a fact finding investigation that she had not
     accessed the employee’s medical record and that this testimony was discredited
     when the access was confirmed by a Sensitive Patient Access Report (SPAR).
     Id.; see IAF, Tab 6 at 38-41. As reflected in the agency fact finding report and
     the appellant’s rebuttal, the appellant opened the CPRS record of fellow employee
     C.R. in order to find his cellular telephone number after he had called her work
     extension from that number and recommended that she avoid the human resources
                                                                                       3

     office that day due to a misunderstanding with his wife, another agency
     employee. See IAF, Tab 6 at 23-27, 38-41. The deciding official determined that
     removal was appropriate and within the range of reasonableness, given the gravity
     of the sustained charges and the lack of mitigating circumstances. Id. at 18.
¶3        The appellant appealed the removal, arguing that the agency did not follow
     proper protocol, there were disparate penalties for the parties involved, she had
     no prior disciplinary actions in 5 years of service, and human resources
     employees at the agency abused their position in making a personal attack against
     her using agency resources. IAF, Tab 1 at 4-6. During the hearing, the appellant
     testified that she had misunderstood the question during the fact finding
     investigation as she did not consider a telephone number part of a medical record
     but admitted to accessing the CPRS record to find the employee’s telephone
     number. After holding the requested hearing, the administrative judge affirmed
     the removal action, finding that the agency had proven both charges by
     preponderant evidence and that removal promoted the efficiency of the service
     and was reasonable. IAF, Tab 16, Initial Decision (ID).
¶4        On review, the appellant argues that she did not violate the Health
     Insurance Portability and Accountability Act (HIPPA), or the agency’s privacy
     and security policies, and contends that the agency violated her procedural due
     process rights in failing to provide her a copy of the SPAR report during the fact
     finding interview.   Petition for Review (PFR) File, Tab 1 at 4.       The agency
     responds that the appellant has not disputed the facts of the case or the
     administrative judge’s presentation of the facts in the initial decision but instead
     tries to characterize her actions as minor violations. PFR File, Tab 3 at 4-5. The
     agency maintains that the appellant’s lack of candor and “cavalier attitude about
     patient privacy” affects public trust in the agency, which is charged with ensuring
     compliance with privacy laws by Congress. Id.
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                     DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge properly sustained the charge of unauthorized access to
     a medical record.
¶5        On review, the appellant does not deny that she accessed the employee
     medical record in question but asserts that her actions did not violate HIPPA, the
     Health Care System Memorandum PO-01—Privacy Policy, or Health Care System
     Memorandum ISO-09—Automated Information Systems Security Policy “due to
     her having approved access requirements.” PFR File, Tab 1 at 4; see IAF, Tab 6
     at 83-163.   The appellant asserts that she had only the “minimum necessary
     access level required to carry out [her] authorized functions” and contends that
     the CPRS system is used for administrative as well as health-related reasons.
     PFR File, Tab 1 at 6-7. Thus, while the appellant admits accessing C.R.’s CPRS
     record, she asserts that she did so for a legitimate business reason as she needed
     to contact the employee, who had no expectation of privacy in the cellular
     telephone number from which he had called her work extension. Id. at 7. The
     appellant does not address that, in opening that CPRS record, she had access to
     not only the employee’s telephone number but also to his confidential medical
     records.

¶6        The record indicates that the appellant had no legitimate business reason for
     accessing the medical record in question, and the agency met its burden of
     proving unauthorized access by a preponderance of the evidence.        The SPAR
     report of C.R.’s CPRS file shows that the appellant accessed the record on the day
     in question, and the appellant at no point has disputed the accuracy of the SPAR
     report. IAF, Tab 6 at 65. Although the appellant maintains that the access was
     authorized as she needed to find C.R.’s telephone number, she admitted in
     hearing testimony that the page she viewed containing the telephone number also
     contained medical information. See PFR File, Tab 1 at 6-7; ID at 7. As noted by
     the administrative judge, the appellant’s hearing testimony was contradictory, as
     at one point she testified that she did not notify her supervisor regarding the
                                                                                      5

     incident because she felt that it was “personal” and “embarrassing” but later
     claimed a business purpose, testifying that she needed to contact C.R. to clarify
     the situation as she had to deal with human resources on a daily basis, although
     she admitted that she did not leave a voicemail or call him back later that day. ID
     at 7. Thus, we find that the record clearly shows that the appellant accessed the
     CPRS record in question and that the agency proved that the access was
     unauthorized as the appellant had no legitimate business purpose for accessing
     that individual’s medical record, even if she sought only to view his contact
     information. We agree with the administrative judge that preponderant evidence,
     including the SPAR report and the appellant’s own admissions, support this
     specification and charge.

     The administrative judge properly sustained the lack of candor charge.
¶7        On review, the appellant argues that she had no intention of deceiving the
     fact finding panel and maintains that she inaccurately answered the question of
     accessing the CPRS record because she misunderstood the question. PFR File,
     Tab 1 at 9. The appellant further blames her misunderstanding on the agency’s
     failure to inform her of the SPAR report at that time.      Id.   We find that the
     administrative judge correctly found that the agency proved by preponderant
     evidence the charge of lack of candor. See ID at 8-10.
¶8        An agency may prove lack of candor by showing that the appellant “fail[ed]
     to disclose something that, in the circumstances, should have been disclosed in
     order to make the given statement accurate and complete.” Ludlum v. Department
     of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002).        Although lack of candor
     “necessarily involves an element of deception,” it does not require proof of intent
     to deceive. Id. at 1284-85. The appellant does not deny her factually inaccurate
     response to the question regarding her access of C.R.’s medical record but
     maintained in both pleadings and testimony that the inaccuracy resulted from her
     misunderstanding that the informational screen she accessed was part of the
                                                                                               6

     medical CPRS record. See IAF, Tab 6 at 21-27. The appellant testified that she
     realized her misunderstanding after the fact finding interview had concluded and
     spoke to her union representative. She testified that she did not make any attempt
     to clarify her response to the fact finders even after the proposed removal,
     asserting that she did not know that she could offer a clarification. See ID at
     8-10. In her written response to the proposed removal, the appellant claimed that
     she   “misspoke   at   the    fact   finding    because     of        [the]   whirlwind   of
     emotions/accusations” levied at her during the interview and surrounding events.
     IAF, Tab 6 at 26. As noted by the administrative judge, the appellant admitted at
     the hearing that she knew that CPRS was a medical record at the time she
     accessed the system. ID at 10.
¶9         We have considered the appellant’s arguments regarding her confusion
     regarding the questioning but discern no reason to reweigh the evidence or
     substitute our assessment of the record evidence for that of the administrative
     judge. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding
     no reason to disturb the administrative judge’s findings when the administrative
     judge considered the evidence as a whole, drew appropriate inferences, and made
     reasoned   conclusions);     Broughton   v.    Department        of    Health    &   Human
     Services, 33 M.S.P.R. 357, 359 (1987) (same). The administrative judge noted
     the testimony of the Information Security Officer that the appellant gave no
     indication of misunderstanding his questioning during the fact finding interview
     and that the appellant “did not at any time correct” her misstatement. See ID at
     8--10. The administrative judge provided adequate reasoning for her finding that
     the appellant lacked candor when she told the Information Security Officer that
     she did not access C.R.’s medical record. ID at 8-10. The appellant has not
     provided sufficiently sound reasons on review to overturn the administrative
     judge’s findings concerning the lack of candor charge. See Haebe v. Department
     of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (the Board must give deference
     to an administrative judge’s credibility determinations when they are based,
                                                                                             7

      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).

      The administrative judge appropriately found that the agency action promotes the
      efficiency of the service and that the penalty of removal is reasonable.
¶10         On petition for review, the appellant does not appear to challenge, and we
      discern no reason to disturb, the administrative judge’s finding that the
      appellant’s misconduct bears a nexus to the efficiency of the service. See PFR
      File, Tab 1; ID at 10. Rather, the appellant seems to focus on the reasonableness
      of the penalty, as her petition for review reiterates that she had offered to enter a
      settlement agreement with the agency for a lesser penalty and she was willing to
      take a reprimand or 30-day suspension to demonstrate taking responsibility for
      her actions.   PFR File, Tab 1 at 9.        However, when all agency charges are
      sustained, the Board will review the agency-imposed penalty only to determine
      whether the agency considered the relevant Douglas 2 factors and exercised
      management discretion within tolerable limits of reasonableness. See Woebcke v.
      Department of Homeland Security, 114 M.S.P.R. 100, ¶ 7 (2010). The record
      contains an in-depth analysis by the Chief of Staff of each Douglas factor,
      completed prior to the removal decision. IAF, Tab 6 at 34-36. The decision itself
      noted that the deciding official had considered factors including the appellant’s
      past work record but that, given the gravity of the sustained charges, mitigation of
      the proposed removal was not warranted.            Id. at 18.    As discussed by the
      administrative judge, the deciding official testified that he had considered the
      Douglas factors prior to removing the appellant, focusing on the serious breach of
      privacy and security in the unauthorized access to the medical record and the loss
      of trust in the appellant due to her lack of candor in the fact finding investigation.

      2
        In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
      presented a nonexhaustive list of 12 relevant factors in determining a penalty for an act
      of misconduct.
                                                                                         8

      See ID at 11. Both the deciding official and the Information Security Officer
      testified that the appellant had undergone training regarding the agency’s security
      and privacy policies, and the appellant admitted that she had received a warning
      of such policies on the CPRS sign-in screen.

¶11         The appellant’s allegation of disparate penalties is without merit.         To
      establish disparate penalties, the appellant must show that there is “enough
      similarity between both the nature of the misconduct and the other factors to lead
      a reasonable person to conclude that the agency treated similarly-situated
      employees differently, but the Board will not have any hard and fast rules
      regarding the ‘outcome determinative’ nature of these factors.” Boucher v. U.S.
      Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012) (quoting Lewis v. Department of
      Veterans Affairs, 113 M.S.P.R. 657, ¶ 15 (2010)). An appellant’s initial showing
      of disparate penalties triggers an agency’s burden to prove a legitimate reason for
      the difference in treatment between the appellant and other employees.
      Boucher, 118 M.S.P.R. 640, ¶ 24.        During the hearing, the deciding official
      testified that the agency had removed other employees for unauthorized access to
      medical records. The appellant and her representative asserted in pleadings and
      testimony that the spouse of the employee, whose CPRS record the appellant
      accessed, violated the same policies by entering her husband’s network account.
      See IAF, Tab 12 at 7-8.            During cross-examination by the appellant’s
      representative, the deciding official testified that a password violation is not the
      same misconduct as unauthorized access to CPRS, which indicates HIPPA
      violations with statutory monetary penalties imposed on the agency. We find that
      the appellant has not made an initial showing of disparate penalties and note that
      the   appellant   submitted   no   evidence    of   similarly-situated   comparators.
      Accordingly, we find that the administrative judge properly considered whether
      the deciding official evaluated the relevant Douglas factors and correctly
                                                                                       9

      determined that the penalty of removal did not exceed the tolerable limits of
      reasonableness.

¶12        On review, the appellant argues that the agency violated her right to due
      process by failing to inform her of the SPAR report, used as evidence against her,
      prior to the fact finding interview. PFR File, Tab 1 at 8. The summary of the
      prehearing conference noted that the appellant raised no affirmative defenses and
      did not discuss due process as an issue in dispute. IAF, Tab 14. The appellant
      filed no objection or motion to supplement the memorandum prior to the hearing.
      The Board generally will not consider an argument raised for the first time in a
      petition for review absent a showing that it is based on new and material evidence
      not previously available despite the party’s due diligence.         See Banks v.
      Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).

¶13        Even assuming that the issue of due process is properly before the Board,
      we find no merit to the appellant’s argument, which cites but mischaracterizes
      relevant Board precedent.     A federal employee is entitled to due process,
      including notice and a meaningful opportunity to respond, prior to being
      removed. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546
      (1985); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376
      (Fed. Cir. 1999).      The appellant makes no allegation of an ex parte
      communication by the agency to the deciding official after the proposed notice of
      removal or that the agency failed to respond to a request for documents. See
      Stone, 179 F.3d at 1372-73. The appellant submitted a copy of the proposal of
      removal in her initial appeal, indicating the SPAR report used as evidence in the
      lack of candor specification and notifying the appellant of her right to review the
      evidence. See IAF, Tab 1 at 9-10. The appellant presents no authority for her
      position that due process required the agency to inform her of all relevant
      evidence prior to the fact finding interview to prevent her from making inaccurate
      statements. The record shows that the appellant received notice of the SPAR
                                                                                 10

report in the proposed removal and notice of her right to review the evidence, and
there is no indication of ex parte communications with the deciding official.
PFR File, Tab 1 at 8.        Thus, the record indicates that the appellant had a
meaningful opportunity to respond to the proposed removal and was not denied
due process.

                 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
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.
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     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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
