                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CHRISTINE DAVIS,                                DOCKET NUMBER
                   Appellant,                        DA-0752-15-0089-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: December 1, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Christine Davis, Houston, Texas, pro se.

           John P. Gniadek, Washington, D.C., 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 stat ute 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 discr etion,
     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 and AFFIRM the initial decision
     except as expressly MODIFIED by this Final Order to include additional analysis
     of the lack of candor charge.

                                     BACKGROUND
¶2        The appellant filed an appeal of the agency’s action removing her from her
     GS-11 Investigator position, effective October 31, 2014.      Initial Appeal File
     (IAF), Tab 1. The agency based the action on five charges: (1) failure to pay the
     balance on a Government travel card (GTC) in a timely manner; (2) misuse of a
     GTC; (3) submitting inaccurate personnel investigations processing systems time
     reports; (4) lack of candor; and (5) willful misuse of a Government-owned vehicle
     (GOV).    IAF, Tab 5, Subtab 4B at 15.     On appeal, the appellant denied this
     misconduct and argued that the agency violated her due process rights because, in
     assessing the penalty, the deciding official considered, as a prior disciplinary
     record, a verbal counseling she received in October 2011, regarding her use of her
     GTC, although this information was not contained in the proposal notice. IAF,
     Tab 1.
¶3        After holding a hearing, the administrative judge sustained all five charges,
     but she did not sustain specifications 2 and 6 of charge 5. IAF, Tab 23, Initial
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     Decision (ID). The administrative judge found further that the appellant failed to
     prove her claim of a due process violation. ID at 10-12.
¶4         The administrative judge found nexus between the sustaine d misconduct
     and the efficiency of the service, and that the penalty of removal was reasonable.
     ID at 12-15.
¶5         On review, the appellant disagrees with the administrative judge’s decision
     to sustain the charges, and she argues that removal was unreasonable . 2 Petition
     for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 4.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     Charge 1 - Failure to pay the balance on a Government travel card in a
     timely manner.
¶6         The agency’s Financial Management Manual, under Chapter 17, Travel
     Policy, indicates that employees are expected to pay GTC statements in full
     within 25 days of the billing date and that an account becomes past due when the
     GTC vendor bank does not receive payment in full by the statement due date.
     IAF, Tab 6 at 33-34.     In this case, the four specifications of charge 1 identify
     specific instances in March, May, June, and July 2013, in which the appellant
     failed to timely pay in full the balances on her GTC statements.            IAF, Tab 5
     at 17-19. Based on the appellant’s concession during her testimony that she was
     aware of the requirement to pay her GTC balance in full each month, and on her
     attorney’s admission “that the appellant did not fully pay her credit card,” the
     administrative judge sustained all specifications and the charge. ID at 2.

     2
       To the extent the appellant’s assertion on review that she “never received a verbal
     counseling in October 2011” can be interpreted as a challenge to the administrative
     judge’s determination that she failed to prove her claim of a due process violation, the
     appellant has failed to identify any error by the administrative judge regarding this
     claim. Petition for Review File, Tab 1 at 5. Moreover, the administrative judge
     thoroughly addressed this issue and found that the deciding official did not consider the
     2011 verbal counseling and that no due process violation occurred because the appellant
     had access to the information at issue. ID at 11. On review, we find no basis upon
     which to disturb the administrative judge’s well-reasoned finding.
                                                                                       4

¶7         On review, the appellant admits she did not fully pay her credit card
     balances, explains that she paid “as amounts were provided and receipts were
     resolved,” and reasserts her claim that she would “pay what was needed to keep
     the account current.” PFR File, Tab 1 at 3. However, under the terms of the
     Financial Management Manual, the appellant was required to pay her GTC
     statements in full within 25 days of the billing date, “even if reimbursement funds
     have not been disbursed in time.” IAF, Tab 6 at 33. A GTC account “becomes
     past due when the GTC vendor bank does not receive payment in full by the
     statement due date.”    Id. at 34.   Here, the record reflects that the appellant
     conceded during her hearing testimony that she was aware of the requirement to
     pay her GTC balance in full each month, and that the GTC statements support the
     agency’s specifications.   IAF, Tab 22, Hearing Compact Disc (HCD).         As the
     administrative judge correctly found, an appellant’s admission to a charge can
     suffice as proof of the charge without additional proof from the agency. Cole v.
     Department of the Air Force, 120 M.S.P.R. 640, ¶ 9 (2014). Further, during her
     closing argument, the appellant’s counsel stated, “We admit that the appellant
     did not fully pay her credit card.” HCD. Thus, even though the appellant argues
     that the administrative judge’s finding on charge 1 is “wrong,” we have found no
     basis upon which to disturb it.
     Charge 2 - Misuse of a Government travel card.
¶8         The agency alleged that the appellant misused her GTC when she paid for
     the meals of family and friends during her temporary duty assignment to
     Longview, Texas, and Houston, Texas.       IAF, Tab 5 at 94-95.    On appeal, the
     appellant denied misusing her GTC and she asserted that she only used it for
     official purposes.
¶9         However, after a thorough Hillen 3 analysis in which administrative judge
     reviewed the record evidence and the hearing testimony, she determined that 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
                                                                                           5

      appellant’s denial was not credible. ID at 3. The administrative judge based this
      on observing the appellant during the hearing, during which she found the
      appellant was “repeatedly evasive” and her responses were “meandering.” Id.
      The administrative judge also found that the appellant was “inordinately agitated
      and   defensive”    and   that   she   “offered   many     unpersuasive,   nonsensical
      explanations for her misconduct.” Id. The administrative judge further found
      that the appellant’s denial was “wholly inconsistent with a previous statement she
      made.” ID at 3-4. Accordingly, the administrative judge found that the appellant
      misused her GTC and she sustained the charge. ID at 4.
¶10         On review, the appellant argues that she believes the adm inistrative judge’s
      findings are a “matter of opinion” and she asserts that she offered more
      information during her hearing testimony because it was information the
      administrative judge did not know. She also contends that she was unaware that
      she had misused her GTC and she argues that charge 2 should be reversed. PFR
      File, Tab 1 at 3.
¶11         While the appellant disagrees with the administrative judge’s credibility
      determinations, mere disagreement does not warrant our full review of the record.
      Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980). Moreover,
      the Board must defer to an administrative judge’s credibility determinations when
      they are based, explicitly or implicitly, on observing the demeanor of witnesses
      testifying at a hearing; the Board may overturn such determinations only when it
      has “sufficiently sound” reasons for doing so.           See Haebe v. Department of
      Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002). Here, because the administrative

      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).
                                                                                        6

      judge’s determinations were founded on implicit and explicit credibility
      determinations based on observing the demeanor of the appellant while testifying
      at the hearing, as well as the evidentiary record, we see no basis upon which to
      overturn the administrative judge’s findings in this regard.
      Charge 4 - Lack of candor.
¶12        Because the agency’s charge 4 is related to the underlying conduct in
      charge 2, we have addressed it here. Charge 4 alleges that the appellant lacked
      candor when, during a September 2013 interview with an Integrity Assurance
      Investigator, she stated that she did not purchase meals for anyone other than
      herself using her GTC. IAF, Tab 5 at 97-98. The administrative judge sustained
      charge 4, based on her finding in charge 2 that the appellant did, in fact, use her
      GTC to purchase food for family and friends, and therefore she lacked candor
      when she initially denied doing so. ID at 4.
¶13        The appellant asserts on review that the administrative judge erred in
      sustaining the charge. The appellant contends that she was frustrated and upset
      during her interview because she was being questioned even though she had never
      been counseled or told there were concerns with her use of the GTC. PFR File,
      Tab 1 at 3. She claims that she answered the questions that were asked and that
      the administrative judge’s finding regarding charge 4 “should be reviewed and
      corrected.” Id.
¶14        As the administrative judge correctly found, when an               underlying
      misconduct charge has been proven, a lack of candor charge also must be
      sustained based on the appellant’s failure to respond truthfully or completely
      when questioned about matters relating to the proven misconduct.           Little v.
      Department of Transportation, 112 M.S.P.R. 224, ¶ 20 (2009).          However, in
      sustaining a lack of candor charge there also must be proof of two required
      elements: (1) that the employee gave incorrect or incomplete information; and
      (2) that she did so knowingly.          Fargnoli v. Department of Commerce,
      123 M.S.P.R. 330, ¶ 17 (2016).
                                                                                        7

¶15        Because our decision in Fargnoli had not been issued at the time of the
      initial decision, the administrative judge did not explicitly address these required
      elements for lack of candor when analyzing charge 4. Nevertheless, the question
      of whether the appellant knowingly gave incorrect or incomplete information
      during the September 2013 interview was directly at issue in charge 2, and it was
      fully addressed by the administrative judge.      ID at 3-4.    In her analysis of
      charge 2, the administrative judge made specific credibility determinations
      regarding the appellant’s hearing testimony and her relevant statements from the
      December 2013 investigative interview, and she addressed the credibility issues
      necessary to resolve the lack of candor charge.          ID at 3-4.    Further, the
      administrative judge’s conclusion in charge 4 was based implicitly on her
      analysis in charge 2. ID at 4.
¶16        For instance, in charge 2, the administrative judge found that during the
      appellant’s December 2013 interview, she handwrote and signed a statement
      admitting that she purchased food with her GTC and brought it back to her hotel
      room to share. ID at 3-4; HCD (testimony of B.P.). The administrative judge
      also found credible, and consistent with the December 2013 interview notes and
      the appellant’s written statement, the testimony of the investigator that the
      appellant admitted during the December 2013 interview that she “should have
      been more upfront” during the September 2013 interview. ID at 4. Accordingly,
      based on her determination that the appellant’s denial of the underlying charged
      misconduct was not credible, the administrative judge properly concluded that the
      appellant lacked candor when she denied the misconduct during the age ncy’s
      investigatory interview.    Thus, because the administrative judge’s ultimate
      finding that the agency proved charge 4 is correct, and because it is implicitly
      based on her specific credibility findings that the appellant provided incorrect or
      incomplete information regarding her food purchases with her GTC and that the
      appellant admitted that she did it, we find that it is not necessary to remand this
                                                                                           8

      appeal for the administrative judge to reanalyze the lack of candor charge in light
      of Fargnoli.
      Charge 3 - Submitting inaccurate personnel investigations processing systems
      time reports.
¶17        The agency’s charge 3 includes four specifications alleging that the
      appellant submitted inaccurate time reports.         IAF, Tab 5 at 22-26.       The
      administrative judge sustained all four specifications, and thus, she sustained the
      charge. ID at 4-6. Regarding specifications 1-3, the administrative judge found
      that the appellant’s testimony was not credible, and that, even if the appellant had
      asked another employee to correct her timesheet for her as she alleged in
      connection with one of the specifications, it was her responsibility to ensure that
      her time was accurately reported. ID at 4-5. As to specification 4, because the
      appellant admitted in her December 2013 statement and her hearing testimony
      that she worked on May 10, 2013, even though she claimed 8 hours of annual
      leave on that date, the administrative judge sustained the specification. ID at 6.
¶18        The appellant argues on review that the administrative judge erred in
      sustaining the first three specifications of charge 3 because she actually worked
      the hours that she claimed. PFR File, Tab 1 at 3. The appellant asserts that she
      has attached her work investigation reports to support her claim. Id. Regarding
      specification 4, the appellant reasserts that she informed her supervisor that she
      was working on the day in question.
¶19        Regarding the documents submitted with the appellant’s petition, the Board
      will not consider evidence submitted for the first time with the petition for review
      absent a showing that it was unavailable before the record was closed despite the
      party’s due diligence. See 5 C.F.R. § 1201.115; Avansino v. U.S. Postal Service,
      3 M.S.P.R. 211, 214 (1980).      Here, the documents the appellant has attached
      are not new, as they from 2012 and 2013, and she has made no showing that these
      documents were unavailable prior to the close of the record below. PFR File,
      Tab 1. Thus, we have not considered them.
                                                                                               9

¶20         Moreover, 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
      (1987) (same); see Haebe, 288 F.3d at 1302.            Specifically, the administrative
      judge sustained the first three specifications based on the agency’s detailed
      documentation and the appellant’s lack of credibility. The administrative judge
      found the appellant not credible based on her earlier findings, as well as the
      appellant’s inconsistent testimony with her prior statements and the impossibility
      in specification 3 of there even being enough hours in the day to support the
      appellant’s claim. ID at 4-6. The administrative judge sustained specification 4
      based on the appellant’s admission during the hearing and in her prior statement
      that she worked on May 10, 2013, even though she claimed annual leave. 4 Thus,
      the administrative judge thoroughly set forth the evidence and her well -reasoned
      findings. While the appellant disagrees with those findings and determinati ons,
      she has provided no basis upon which to disturb them.

      4
        We acknowledge that the appellant’s incorrect reporting for this date did not benefit
      her in any way—and it in fact harmed her, given that she was, or could have been,
      charged annual leave for a day she actually worked. See generally Atchley v.
      Department of the Army, 46 M.S.P.R. 297, 303 (1990) (determining that generally, an
      employee cannot be charged as absent without leave for dates in which he received pay
      or the agency approved his leave request); Mainor v. Department of the Navy,
      38 M.S.P.R. 528, 531 (1988). Nonetheless, we find that the agency proved the
      specification as it is labeled because the appellant did not accurately report her time for
      this date. In any event, even if we were to decide not to sustain this specification, it
      would not change our ultimate determination to sustain the charge. See Burroughs v.
      Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (finding that, when more
      than one event or factual specification supports a single charge, proof of one or more,
      but not all, of the supporting specifications is sufficient to sustain the charge).
                                                                                          10

      Charge 5 - Willful misuse of a Government-owned vehicle.
¶21         The agency charged the appellant with willful misuse of a GOV for
      nonofficial purposes as proscribed by 31 U.S.C. § 1349(b).          For an action to
      constitute a “willful” use for a nonofficial purpose within the meaning of this
      provision, the officer or employee must have had actual knowledge that the use
      would be characterized as nonofficial or have acted in reckless disregard as to
      whether the use was for a nonofficial purpose.         Kimm v. Department of the
      Treasury, 61 F.3d 888, 891-92 (Fed. Cir. 1995); Felton v. Equal Employment
      Opportunity Commission, 820 F.2d 391, 393-94 (Fed. Cir. 1987).
¶22         Here, the agency alleged in six specifications that the appellant willfully
      misused her GOV by operating it when she was not performing official
      Government duties. IAF, Tab 5 at 98-105. The specifications range from filling
      up the GOV’s gas tank on weekend days at gas stations that were not close to her
      domicile location, refueling the GOV on days while she was on sick leave,
      traveling great distances while on leave during which the GOV tags were
      recorded on toll roads in other cities, and traveling great distances (160 miles,
      and 370 miles) in the GOV without an official reason to do so.               Id.   The
      administrative judge sustained specifications 1, 3, 4, and 5, and thus she sustained
      charge 5. 5 Specifically, she found that the appellant’s denials were not credible,
      and that the agency proved the underlying specifications by preponderant
      evidence. ID at 7-10. The administrative judge fully explained her reasoning
      behind her findings and determinations and we find no basis upon which to
      disturb them. Id.
¶23         While the appellant reasserts on review that she used her GOV to work on
      cases assigned to her, the agency presented her case manifest below and it
      does not support the number of miles driven by the appellant in her GOV. IAF,

      5
        The administrative judge did not sustain specifications 2 and 6, finding that the
      agency failed prove that the appellant’s refueling her assigned GOV while on sick leave
      on January 16 and July 25, 2013, was a willful misuse of the GOV. ID at 8.
                                                                                          11

      Tab 6 at 165-77.    Further, even though the appellant contends that she never
      willfully misused her GOV, the documentary evidence, including the tolls
      charged to the GOV toll tag, miles traveled in the GOV during the relevant period
      of time, and the calls made from her Government cell phone, supports the charged
      misconduct. Id. at 116-18. Accordingly, we find no basis upon which to disturb
      the administrative judge’s findings.
      Penalty of removal.
¶24         Finally, the appellant challenges the reasonableness of the penalty. Here,
      while all of the charges were sustained, two of the six specifications underlying
      charge 5 were not sustained. The Board has held that, when all of the agency’s
      charges are sustained, but some of the underlying specifications are not,
      sustained, the agency’s penalty determination is entitled to deference and should
      be reviewed only to determine whether it is within the parameters of
      reasonableness. Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996). In
      this case, in reviewing the penalty, the administrative judge found that the agency
      conscientiously considered all of the relevant factors set out in Douglas v.
      Veterans Administration, 5 M.S.P.R. 280, 306 (1981), and exercised discretion
      within tolerable limits of reasonableness. ID at 14.
¶25         For example, the administrative judge determined that the deciding official
      properly found the appellant’s 3 years of fully successful service insufficient to
      mitigate the penalty in light of her position of trust as an Investigator, her prior
      notice that her actions were improper, that her misconduct had the potential to
      tarnish the agency’s reputation, and her lack of remorse. ID at 14. While not all
      of the specifications of charge 5 are sustained, the deciding official testified that
      removal would have been warranted based solely on the appellant’s repeated
      misuse of a GOV.       IAF, Tab 5 at 37; IAF, Tab 22, HCD (testimony of the
      deciding official). Thus, we agree with the AJ that the penalty selected by the
      agency is within the range of reasonable penalties. Accordingly, we conclude
      that the appellant has shown no basis upon which to disturb the initial decision.
                                                                                 12

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
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
                                                                                 13

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.
