Clifford W. Jones, Sr. v. Department of Health and Human Services
Background
- Clifford W. Jones, Sr., a GS-11 Supervisory Financial Management Specialist at IHS Cass Lake Hospital, was removed effective May 20, 2011 for unacceptable performance in three critical elements.
- Jones previously pursued an IRA (whistleblower) appeal and sought OSC review; the Board found lack of jurisdiction over the IRA but later directed the removal appeal under chapter 43 for adjudication on the merits after procedural remands.
- On remand the agency defended the removal with a validated performance appraisal system, communicated standards, a performance improvement plan (PIP), and testimony that Jones failed to meet three critical elements (supervisory oversight; financial direction; implementing the “M” inventory system and reporting).
- The administrative judge heard the case, found the agency proved unacceptable performance in all three elements by substantial evidence, rejected Jones’s due process, discrimination (age, sex), and whistleblower defenses, and sustained the removal. The Board denied review and affirmed.
- The judge relied on witness demeanor and documentary evidence; Jones did not testify at hearing and declined to present witnesses or documentary proof for discrimination claims. The Board applied collateral estoppel to bar relitigation of the whistleblower issue resolved in the prior IRA proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agency proved unacceptable performance in three critical elements | Jones disputed one subpart (implementation of “M” system), claimed staffing/contractor issues prevented compliance | Agency relied on PIP, testimony (including deciding official) that Jones failed to implement system or provide required reports | Sustained: Board deferred to AJ credibility findings; substantial evidence showed unacceptable performance in all three elements |
| Whether Jones may assert whistleblower retaliation defense | Jones claimed disclosures about a second accounting section and hiring irregularities were protected and removal was retaliatory | Agency argued the issue was already litigated; prior IRA decision negated jurisdiction but resolved whether disclosure was protected | Barred by collateral estoppel: issue identical, actually litigated, necessary to prior judgment, and Jones had full and fair opportunity to litigate |
| Whether agency denied due process (notice/ability to respond; denial of computer access) | Jones alleged due process violations, including loss of computer access after notice of proposed removal and issues re Budget Technician position | Agency showed written notice, opportunity to respond, and that computer access denial (disputed) did not affect outcome; evidence did not support procedural-error claim | Rejected: AJ found no due process violation; even if access denied, no showing outcome would differ |
| Whether Jones established age/sex discrimination | Jones asserted discrimination but offered no documentary evidence and declined to testify; sought to call witnesses denied as irrelevant | Agency presented sworn testimony that age/sex were not factors; objected to proffered witnesses as irrelevant | Not sustained: Jones failed to introduce evidence; AJ did not abuse discretion in excluding witnesses; discrimination claims failed |
Key Cases Cited
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (deference to credibility findings based on witness demeanor)
- Hillen v. Department of the Army, 35 M.S.P.R. 453 (MSPB 1987) (factors for assessing witness credibility)
- Kroeger v. U.S. Postal Service, 865 F.2d 235 (Fed. Cir. 1988) (elements for collateral estoppel/issue preclusion)
- Boal v. Department of the Army, 51 M.S.P.R. 134 (MSPB 1991) (adverse inference for a party’s refusal to testify)