An Individual Taxpayer Adviser Specialist lost his cool with a taxpayer, leading to his removal for poor customer service. He lost his appeal to the Merit Systems Protection Board (MSPB), and has now fared no better with the appeals court. (Diaz v. Department of Treasury (CAFC No. 2016-1819, (nonprecedential) 8/3/16)) The facts are taken from the court’s recent decision.
Mr. Diaz got into an obviously public altercation with a taxpayer who had stopped into the Taxpayer Assistance Center in Chamblee, Georgia. In a later hearing before the MSPB several witnesses and the taxpayer testified that the exchange was “heated”, that Diaz followed the taxpayer from the walk-in assistance area, loudly used profanity and made threats against the taxpayer. Diaz admitted to the profanity but argued that it was quiet, not loud. Nevertheless the agency fired Diaz as a result of the incident. (P. 2)
The Board affirmed Diaz’s removal for unprofessional dealings and for creating a workplace disruption. The Administrative Judge found that the testimony of several witnesses to the incident was more credible than Mr. Diaz’s testimony.
Diaz argued to the appeals court that it was error for the AJ to rely on testimony of the other witnesses, which was in Diaz’s opinion hearsay. The court did not buy, pointing out that witness credibility decisions made by an AJ are “virtually unreviewable.” (p. 3) And, the witnesses did not present hearsay. They “consistently testified to the events surrounding the altercation…” (p. 3)