                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HECTOR R. DIAZ,                                 DOCKET NUMBER
                   Appellant,                        AT-0752-15-0471-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: March 11, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Hector R. Diaz, Lawrenceville, Georgia, pro se.

           Andrew M. Greene, Esquire, Atlanta, Georgia, 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 his 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
     erroneous application of the law to the facts of the case; the administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, 2 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 formerly employed by the agency as an Individual
     Taxpayer Adviser Specialist. Initial Appeal File (IAF), Tab 3, Subtab 4a. On
     September 4, 2014, the agency proposed removing the appellant based on charges
     of:   (1) unprofessional dealings with a taxpayer; and (2) creating a workplace
     disruption. Id., Subtab 4d at 1. Concerning the first charge, the agency alleged
     that on March 19, 2014, the appellant had an altercation with a taxpayer at the
     Taxpayer Assistance Center in Chamblee, Georgia. Id. Specifically, the agency
     alleged that the appellant told the taxpayer, “[g]et your ass out of here,” pointed
     his finger in her face, and continued to harass her after a security guard
     intervened and instructed him to leave the area. Id. Regarding the second charge,
     the agency alleged that, while servicing that same taxpayer, the appellant created

     2
       It appears that during the hearing the administrative judge admitted one agency exhibit
     and two appellant exhibits. Hearing Compact Discs (HCDs). However, these exhibits
     were not placed in the record. Despite efforts by the Office of the Clerk of the Board to
     obtain these exhibits from the parties, only the agency’s exhibit was received, as neither
     the agency nor the appellant could produce the appellant’s exhibits. The agency’s
     exhibit has now been placed in the record. Petition for Review (PFR) File, Tab 5. We
     find that the administrative judge’s failure to place these three exhibits in the record
     below and the absence of two exhibits from the record on review does not affect the
     Board’s disposition in this matter.
                                                                                          3

     a disturbance in the workplace that resulted in a significant work interruption for
     his coworkers and taxpayers. Id. After the appellant responded to the notice of
     proposed removal, id., Subtab 4c, the deciding official issued a decision letter,
     sustaining the charges and stating that the appellant would be removed, effective
     March 20, 2015, id., Subtab 4b.
¶3         The appellant appealed his removal to the Board, denying that he had
     engaged in the charged misconduct. IAF, Tab 1 at 2. After holding the requested
     hearing, the administrative judge issued an initial decision affirming the
     appellant’s removal. IAF, Tab 16, Initial Decision (ID). Based on the testimony
     of S.C., a security guard, and J.G., a Senior Tax Advisor at the Taxpayer
     Assistance Center, the administrative judge found that the agency proved the
     charge of unprofessional dealings with a taxpayer. ID at 8-9; see IAF, Tab 15,
     Hearing Compact Discs (HCDs) (testimony of S.C. and J.G.). The administrative
     judge further found that the agency proved the second charge of creating a
     workplace disruption, because, although the taxpayer was antagonistic, the
     appellant escalated the situation and intensified the conflict. ID at 10. Finally,
     the administrative judge found that a nexus existed between the sustained charges
     and the efficiency of the service, id., and that removal was a reasonable penalty,
     ID at 14. 3
¶4         The appellant has filed a petition for review of the initial decision, in which
     he argues that the administrative judge erred in his credibility determinations and
     that the agency destroyed relevant evidence.       Petition for Review (PFR) File,
     Tab 1. 4 The agency has responded. PFR File, Tab 3.


     3
       The appellant does not appear to challenge these findings in his petition for review.
     In any event, we discern no basis for disturbing the administrative judge’s
     well-reasoned determination that the agency established a nexus between the sustained
     misconduct and the efficiency of the service and that the penalty of removal was
     reasonable under the circumstances in this case.
     4
      The appellant also argues on review that the administrative judge committed “slander”
     by accusing him of accessing “the taxpayer’s account illegally.” PFR File, Tab 1 at 1.
                                                                                              4

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant failed to establish that the administrative judge made erroneous
     credibility determinations.
¶5         On review, the appellant claims that the administrative judge failed to
     consider the taxpayer’s history of arrests.        PFR File, Tab 1 at 1.       He further
     contends that the administrative judge failed to consider that the taxpayer
     allegedly lied under oath about her arrest history, provided a false name to a
     Treasury Inspector General for Tax Administration (TIGTA) agent, and told other
     unspecified lies. Id. We construe the appellant’s allegations as a claim that the
     administrative    judge    erred   in   his   credibility    determinations     regarding
     the taxpayer.
¶6         At the hearing, the administrative judge allowed the appellant to question
     the taxpayer about the spelling of her name on a TIGTA report, her prior arrests,
     and her truthfulness about those arrests, and to present evidence regarding the
     taxpayer’s arrest history. 5    HCDs (testimony of the taxpayer).          However, the
     administrative judge did not make any credibility determinations regarding the
     taxpayer, other than to state that her testimony at hearing was consistent with a
     written statement that she prepared on the date of the incident at issue in the




     The administrative judge did not accuse the appellant of accessing the taxpayer’s
     account illegally, either in the initial decision or during the hearing. ID; HCDs.
     Accordingly, we find that the appellant’s contentions that the administrative judge
     accused him of additional misconduct or committed slander are without merit.
     5
       Although the administrative judge allowed the appellant to present evidence regarding
     the taxpayer’s arrest history, the Board has recognized the application of Federal Rule
     of Evidence 609, which permits impeachment of a witness’s credibility only with
     evidence of convictions, not arrests. Wright v. U.S. Postal Service, 84 M.S.P.R. 607,
     ¶ 10 (1999); see Yanopoulos v. Department of the Navy, 796 F.2d 468, 471 (Fed. Cir.
     1986) (determining that although the Federal Rules of Evidence are not applicable to
     Board proceedings, they are a helpful guide to proper hearing practice). Under Federal
     Rule of Evidence 608, the appellant could cross-examine the taxpayer regarding her
     prior arrests, but only to the extent that they involved charges probative of her character
     for truthfulness. See Wright, 84 M.S.P.R. 607, ¶ 10.
                                                                                             5

     charges. 6   ID at 7.    Moreover, the administrative judge did not rely on the
     taxpayer’s testimony in sustaining the charges, but instead, relied solely on the
     testimony of S.C. and J.G.         ID at 8-9.     For these reasons, the appellant’s
     arguments regarding the taxpayer’s alleged lack of truthfulness and arrest history
     do not form a basis for granting the petition for review.
¶7         The appellant further argues on review that S.C. and J.G. told “blatant lies”
     and that he never used obscene language towards the taxpayer. 7 PFR File, Tab 1
     at 2. We find that the administrative judge properly considered the appropriate
     factors for making credibility determinations set forth in Hillen v. Department of
     the Army, 35 M.S.P.R. 453, 458 (1987), 8 and found that S.C.’s and J.G.’s
     testimony was more credible than the appellant’s. ID at 7-8. 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). Here, the administrative judge
     found that S.C.’s testimony was “clear, forthright, and unequivocal” and that

     6
       Contrary to the appellant’s assertions on review, the administrative judge did not
     “protect” the taxpayer, or make a finding that she did not lie. PFR File, Tab 1 at 1;
     see ID.
     7
       At hearing, the appellant testified that he told the taxpayer that she should “come kick
     [his] ass” if she wanted to, although he claimed that he made this statement quietly in
     response to a threat from the taxpayer. HCDs (testimony of the appellant). However,
     regardless of the appellant’s motivation for making the statement, he admitted that he
     used obscene language.
     8
       To resolve credibility issues, an administrative judge must identify the factual
     questions in dispute, summarize the evidence on each disputed question, state which
     version he believes, and explain in detail why he 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, 35 M.S.P.R. at 458.
                                                                                         6

     J.G.’s testimony was “direct and unwavering.” ID at 7. He also considered that
     the appellant failed to establish any bias on the part of S.C. and J.G., id., and that
     the appellant’s testimony that he behaved politely was both contradicted by other
     evidence of record, and inherently improbable, in light of the taxpayer’s intense
     and violent reaction, ID at 8.          While the appellant disagrees with the
     administrative judge’s credibility determinations, his mere assertion that S.C. and
     J.G. lied does not present a sufficiently sound basis to overturn the administrative
     judge’s findings. 9   See Haebe, 288 F.3d at 1300; Kimm v. Department of the
     Treasury, 61 F.3d 888, 892 (Fed. Cir. 1995).
     The appellant’s contentions concerning destruction of evidence do not provide a
     basis for disturbing the initial decision.
¶8         On review, the appellant also contends that the agency’s destruction of
     audio and video recordings of the Taxpayer Assistance Center from the date of
     the incident at issue in the charges prejudiced his ability to support his defense.
     PFR File, Tab 1 at 1. He asserts that the agency intentionally destroyed these
     recordings and that if the recordings had been available, they would have
     vindicated him. Id. We construe the appellant’s assertions as an argument that
     the administrative judge erred in denying his motion for an adverse inference
     based on the spoliation of evidence. ID at 9 n.5. As discussed below, under the
     circumstances of this case, we find that the appellant’s argument does not provide
     a basis for disturbing the initial decision.
¶9         On September 4, 2014, the same day that the agency issued the notice of
     proposed removal, through a union information request the appellant asked for
     copies of video surveillance recordings of the Taxpayer Assistance Center from


     9
       On review, the appellant further contends that he was “guilty before the hearing
     began.” PFR File, Tab 1 at 1. We construe this allegation as a claim that the
     administrative judge was biased. In making a claim of bias or prejudice against an
     administrative judge, a party must overcome the presumption of honesty and integrity
     that accompanies administrative adjudicators. Oliver v. Department of Transportation,
     1 M.S.P.R. 382, 386 (1980). We find that the appellant has failed to meet that burden.
                                                                                                 7

      March 19, 2014. 10     IAF, Tab 11 at 2.       The agency did not provide the video
      recordings in response to the information request. Id. at 4; IAF, Tab 3, Subtab 4c
      at 7. However, the appellant never requested audio or video recordings from the
      agency during the course of discovery in his Board appeal. ID at 9 n.5. Despite
      his failure to request these materials during discovery, at the commencement of
      the hearing on July 7, 2015, the appellant orally moved to compel production of
      the audio and video recordings. 11 HCD (the appellant’s oral motion prior to the
      commencement of hearing testimony). After counsel for the agency represented
      that the audio and video recordings would have been destroyed pursuant to the
      agency’s routine policies, the administrative judge deferred ruling on the
      appellant’s motion, which he construed as a motion for an adverse inference due
      to the spoliation of evidence. Id.
¶10         The agency presented testimony from D.C., a Territory Manager and the
      proposing official. HCD (testimony of D.C.); IAF, Tab 3, Subtab 4d at 3. She
      testified that, pursuant to agency policy, video recordings of the Taxpayer
      Assistance Center are routinely erased 30 days after the recordings are made, and
      audio recordings are routinely erased 45 days after the recordings are made. Id.
¶11         Shortly after the altercation between the appellant and the taxpayer, a
      supervisory employee at the Taxpayer Assistance Center reported the incident to
      TIGTA, which then conducted an investigation. IAF, Tab 3, Subtab 4f at 1-2, 5.

      10
        The record does not reflect that the appellant requested audio recordings.            IAF,
      Tab 11 at 2.
      11
         In the initial decision, the administrative judge indicated that the appellant also raised
      the issue of the audio and video recordings at the prehearing conference on June 24,
      2015. ID at 9 n.5. The agency’s filings below confirm that the issue was raised at the
      prehearing conference. IAF, Tab 14 at 5. However, the order and summary of the
      prehearing conference does not reflect that the audio and video recordings were
      discussed, or what was said regarding these materials. IAF, Tab 10. Regardless, we
      find that it is not relevant whether the audio and video recordings were first raised at
      the prehearing conference or at the commencement of the hearing, because in either
      case, the appellant did not request them during discovery, or move to compel their
      production prior to the close of discovery.
                                                                                        8

      D.C. testified that, therefore, she was under the impression that TIGTA would
      maintain the audio and video recordings. HCD (testimony of D.C.). D.C. further
      testified that, after the appellant submitted his information request for the audio
      and video recordings in response to the notice of proposed removal, she contacted
      TIGTA to inquire about the recordings, and learned that they had been destroyed
      pursuant to the agency’s routine policies. Id.
¶12        Following the hearing, in the initial decision, the administrative judge
      denied the appellant’s motion for an adverse inference based on the spoliation of
      evidence. ID at 9 n.5. We find that the appellant has not demonstrated that the
      administrative judge abused his discretion in declining to draw an adverse
      inference   against   the   agency.      See     Leseman v.    Department   of   the
      Army, 122 M.S.P.R. 139, ¶ 6 (2015) (finding that, absent an abuse of discretion,
      the Board will not reverse an administrative judge’s determination regarding
      sanctions). There appears to be no dispute that the agency no longer had the
      audio and video recordings when the appellant asked for them through his union
      information request and that the appellant never requested the materials through
      discovery in his Board appeal, or timely moved to compel their production. PFR
      File, Tab 1 at 1; HCD (testimony of D.C.). In light of the agency’s immediate
      awareness of the altercation between the appellant and the taxpayer and the
      resulting TIGTA investigation, the agency should have taken affirmative steps to
      preserve the audio and video recordings.         However, we find no evidence to
      support the appellant’s assertions that the agency deliberately destroyed the
      evidence to thwart his defense, as opposed to negligently allowing the evidence to
      be destroyed pursuant to routine policies.         See Hidalgo v. Department of
      Justice, 93 M.S.P.R. 645, ¶ 23 (2003) (denying a request for a negative inference
      against an agency where an agency investigator destroyed his notes of his
      interviews with an appellant and testified that it was his practice to destroy his
      interview notes on completion of his investigatory reports).
                                                                                      9

¶13        Furthermore, the agency presented testimony from witnesses, including S.C.
      and J.G., with first-hand knowledge of the incident in question, afforded the
      appellant an opportunity to cross-examine those witnesses, and otherwise
      provided sufficient documentary and testimonial evidence to prove the charges by
      preponderant evidence.     HCDs (testimony of S.C. and J.G.); IAF, Tab 3,
      Subtab 4f.   Therefore, we find that the administrative judge did not abuse his
      discretion in declining to draw an adverse inference under the facts of this case,
      nor would an inference be sufficient to change the outcome here in view of the
      record as a whole. ID at 9 n.5; see Hidalgo, 93 M.S.P.R. 645, ¶ 23 (finding that a
      negative inference based on destruction of evidence was not warranted where the
      agency presented testimony from a witness with first-hand knowledge of the facts
      at issue, afforded the appellant the opportunity to cross-examine the witness, and
      otherwise proved the charges by preponderant evidence).
¶14        Based on the foregoing, we affirm the initial decision that sustained the
      appellant’s removal.

                      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,
      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
                                                                                 10

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