                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NA NATTE L. CHANEY,                             DOCKET NUMBER
                   Appellant,                        CH-0752-14-0685-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: August 4, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Dale L. Ingram, Esquire, Kansas City, Missouri, for the appellant.

           Michael E. Anfang, Esquire, Kansas City, Missouri, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained her 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 the


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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, 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 appellant was removed from her position as an Advanced Medical
     Support Assistant in the cardiology outpatient clinic (Cardio Clinic) of a Veterans
     Affairs (VA) Medical Center on July 12, 2014, based on charges of failure to
     perform duties and improper information disclosure. Initial Appeal File (IAF),
     Tab 1. At the time of her removal, the appellant was on a team consisting of
     nurses and support staff in the Cardio Clinic referred to as the Cardiology PACT 2
     Team. IAF, Tab 23, Hearing Compact Disc (HCD) 1. The appellant’s primary
     responsibility within the team was to schedule appointments pursuant to the
     requests of providers. Id.; IAF, Tab 28, HCD3. After joining the Cardio Clinic,
     the appellant learned that she would have responsibilities also in the “Silver
     Clinic,” which was located on a different floor.       In March 2014, it became
     apparent that the appellant was struggling to maintain the split responsibilities
     and the agency relieved her of her responsibilities in the Silver Clinic and
     instructed her to focus on the Cardio Clinic. IAF, Tab 24, HCD2.


     2
         PACT stands for Patient Align Care Team.
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¶3        On April 11, 2014, the appellant received a written admonishment for
     “unacceptable customer service” provided to a veteran patient. IAF, Tab 4, Part 1
     at 22-23.   On April 28, 2014, the appellant received a written reprimand for
     “failure to follow instructions” because she had twice failed to schedule a
     follow-up appointment for a veteran as instructed. Id. at 24‑25.
¶4        On May 14, 2014, the appellant sent an email containing the name of a
     veteran patient to the personal email address of a union official who was not an
     agency employee at the time. That same day, an agency Information Security
     Officer notified all recipients to the email string to delete the email because it
     contained sensitive information. On or about May 23, 2014, a nurse or “Care
     Coordinator” received information that the appellant had a drawer full of yellow
     sheets, which are documents completed by medical providers for the scheduling
     of follow‑up appointments for veterans. HCD1. This information was provided
     to management, and a management official subsequently asked the appellant
     about the documents. HCD2. The appellant admitted that she had not completed
     the tasks associated with the yellow sheets and turned over approximately
     1,000 yellow sheets.    IAF, Tab 4, Part 1 at 46 through Part 5 at 139.        An
     agency-appointed review team subsequently determined that, of the estimated
     1,032 yellow sheets discovered in the appellant’s office, the appellant had failed
     to take the necessary actions on 368 of them. IAF, Tab 4, Part 6 at 24; HCD1;
     HCD2; HCD3.
¶5        On May 28, 2014, the appellant was detailed to the Silver Clinic while the
     agency conducted an investigation into the yellow sheets. When asked about the
     yellow sheets in her office, the appellant admitted to not completing some of
     them, IAF, Tab 4, Part 6 at 5, and that she was aware that appointments had not
     been scheduled, id. at 7. Upon concluding the investigation, the agency proposed
     the appellant’s removal based on charges of (1) failure to perform her duties in
     not acting upon 368 of the 1,032 yellow sheets discovered in her office, and
                                                                                        4

     (2) improper information disclosure in sending an email containing a patient’s
     name to a nonagency email address. Id. at 24. The appellant provided oral and
     written responses denying that she had failed to perform her duties and any
     wrongdoing associated with the email message containing a patient’s name. Id.
     at 26-27.   The agency removed the appellant effective July 12, 2014.            The
     appellant filed a timely appeal.
¶6         After holding a 3-day hearing, the administrative judge issued an initial
     decision affirming the appellant’s removal.     Initial Decision (ID) at 2.     After
     thoroughly reviewing      documentary evidence     and   hearing   testimony,     the
     administrative judge found that, coupled with the appellant’s admitting to not
     scheduling appointments, the agency presented sufficient evidence to establish
     the essence of the charge of failure to perform duties. ID at 12‑21. Regarding
     the charge of improper information disclosure, the administrative judge found
     that, prior to the hearing, the appellant stipulated that she sent an email
     containing the name of a veteran patient to the personal email address of a union
     official who was not an agency employee at the time. The administrative judge
     found that the agency established that the appellant did not have a legitimate
     reason to send an email containing a veteran’s name, that the union official could
     have provided his assistance without the veteran’s name, and that the agency
     treats the confidentiality of veterans’ personal information very seriously.      ID
     at 22. Thus, the administrative judge found that the agency proved the charge by
     preponderant evidence. ID at 23.
¶7         The administrative judge also denied the appellant’s claim, raised for the
     first time during the hearing, that she was denied due process because the agency
     allegedly did not provide her with sufficient time to review the yellow sheets
     prior to her response to the proposed removal.        ID at 24.    Concluding, the
     administrative judge found nexus and that the penalty of removal is within the
     tolerable limits of reasonableness in light of the seriousness of the offenses, the
                                                                                       5

      appellant’s prior discipline, and her failure to accept responsibility for her
      actions. ID at 25‑28.
¶8         The appellant has filed a petition for review. Petition for Review (PFR)
      File, Tab 5. The agency has filed a response. PFR File, Tab 7.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶9         On appeal, the appellant raises various arguments in which she asserts that
      the administrative judge erred in sustaining Charge 1. PFR File, Tab 5 at 6‑7.
      Specifically, the appellant contends that the Cardio Clinic and the Medical Center
      had a history of backlogged patient appointments and that the administrative
      judge improperly held the appellant to an agency policy for scheduling
      appointments within 24 hours that was stated only in agency testimony but not
      reflected in any documentation. Id. at 10-11. The appellant also contends that
      the administrative judge improperly relied on the 664 yellow sheets that were not
      part of Charge 1 to support the charge. Id. at 12-15, 18-21. The appellant asserts
      that she had properly stored these 664 completed yellow sheets in her file cabinet,
      where they were found as part of the agency’s investigation into her misconduct.
      In addition, the appellant asserts that some of the yellow sheets at issue were
      completed while she was on leave, and she had made appointments for others. Id.
      at 20. She also asserts that there were “shenanigans” in how the 1,032 yellow
      sheets became a part of the record. Id.
¶10        We have considered the appellant’s arguments on review concerning the
      administrative judge’s weighing of the evidence for the charged misconduct;
      however, we 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 she 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
                                                                                           6

      (1987) (same); see Haebe v. Department of Justice, 288 F.3d 1288, 1302
      (Fed. Cir. 2002) (finding that the Board may overturn an administrative judge’s
      demeanor-based credibility determinations only when it has “sufficiently sound”
      reasons for doing so).
¶11         Here, the administrative judge thoroughly discussed the evidence, including
      the hearing testimony, and explicitly found the agency witnesses were more
      credible than was the appellant. In finding that there was insufficient evidence to
      support the appellant’s explanation for her actions, the administrative judge
      expressed her impression, based on both the appellant’s testimony and the written
      record that, “she thought she knew best how the Cardio Clinic should be run and
      she willfully refused to follow instructions from her team when she disagreed
      with them.” ID at 19. The appellant argues that, in making this finding, the
      administrative judge improperly treated Charge 1 as a charge of insubordination
      rather than failure to “[schedule] patients within the mandated timeframes.” PFR
      File, Tab 5 at 7-9.      We disagree.      The initial decision reflects that the
      administrative judge thoroughly considered the record evidence, including
      hearing testimony, in sustaining the charge of failure to perform duties, and that
      her well-reasoned findings regarding the appellant’s testimony and the written
      record were consistent with a Hillen 3 analysis. ID at 11‑21.
¶12         In this connection, the appellant also argues that the administrative judge
      erred because she did not analyze all of the Hillen factors, citing only to the


      3
        To resolve credibility issues, an administrative judge must identify the factual
      questions in dispute, summarize the evidence on each disputed question, state which
      version she believes, and explain in detail why she found the chosen version more
      credible, considering such factors as: (1) the witness’s opportunity and capacity to
      observe the event or act in question; (2) the witness’s character; (3) any prior
      inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
      contradiction of the witness’s version of events by other evidence or its consistency
      with other evidence; (6) the inherent improbability of the witness’s version of events;
      and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453,
      458 (1987).
                                                                                       7

      consistency of the evidence.     However, an administrative judge’s failure to
      specifically discuss each Hillen factor noted above does not mean that she did not
      consider each factor in the initial decision. See Stein v. U.S. Postal
      Service, 57 M.S.P.R. 434, 440 (1993). Here, the administrative judge performed
      a proper Hillen analysis when she considered:          all of the testimony; the
      consistency of that testimony with the written record; the inconsistency of the
      appellant’s testimony blaming others for the reason why the yellow sheet
      assignments were not completed with her statements during the agency interview
      admitting that she did not act on the yellow sheets; as well as any motive on the
      part of the witnesses to lie. While the appellant disagrees with the administrative
      judge’s credibility determinations, mere disagreement with the administrative
      judge’s findings does not warrant full review of the record by the Board.
      Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980). Moreover,
      because the administrative judge’s determinations were founded on implicit and
      explicit credibility determinations based on observing the demeanor of the
      witnesses testifying at the hearing, we see no basis upon which to disturb her
      findings in this regard. Haebe, 288 F.3d at 1301.
¶13        To the extent the appellant argues that the administrative judge’s analysis of
      how the agency proved Charge 1 does not identify the record evidence in support
      of this charge or identify which specifications were sustained, we disagree.
      Specifically, Charge 1 consists of one specification involving the 1,032 yellow
      sheets found in the appellant’s desk drawer and file cabinet and the appellant’s
      failure to take action on 368 of those yellow sheets. The administrative judge
      thoroughly set forth the evidence and her well-reasoned findings.       While the
      appellant disagrees with those findings, she has provided no basis upon which to
      disturb them.
                                                                                            8

¶14           Regarding Charge 2, the appellant asserts for the first time on review that
      her disclosure of a patient’s name was inadvertent. 4          However, because the
      appellant failed to make any showing that this argument is based on new and
      material evidence not previously available despite her due diligence, the Board
      need not consider it. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
      (1980).    Moreover, the record reflects that, prior to the hearing, the appellant
      stipulated that she sent an email containing the name of a veteran patient to the
      personal email account of a union official who was not an agency employee at the
      time.     ID at 3 n.4; IAF, Tab 15 at 4.    As the administrative judge found, the
      appellant’s email violated the agency’s National Rules of Behavior, contained in
      the VA Handbook. IAF, Tab 11 at 78. Thus, the administrative judge correctly
      found that the agency established the specification supporting the charge of
      improper information disclosure. Accordingly, we conclude that the appellant has
      shown no error by the administrative judge in sustaining the agency’s action and
      affirming her removal from the position of Advanced Medical Support Assistant.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
              You have the right to request review of this final decision by the U.S.
      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,

      4
        The appellant also asserts for the first time on review that the agency improperly and
      inadvertently disclosed patient information during the course of the Board appeal. PFR
      File, Tab 5 at 23-24. However, because that issue is not before the Board, we need not
      address it.
                                                                                  9

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 U.S. 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 U.S. 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono       for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   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:                               ______________________________
                                             Jennifer Everling
                                             Acting Clerk of the Board
Washington, D.C.
