NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THASHA A. BOYD,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2018-1459
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-17-0412-I-1.
______________________
Decided: July 2, 2018
______________________
THASHA A. BOYD, Kennesaw, GA, pro se.
LAUREN MOORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by CHAD A.
READLER, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM.
______________________
Before REYNA, BRYSON, and HUGHES, Circuit Judges.
2 BOYD v. DVA
PER CURIAM.
This petition for review relates to a decision by the
Merit Systems Protection Board to remove Thasha A.
Boyd from federal service after being charged with inap-
propriate conduct toward a co-worker and failure to follow
her supervisor’s instructions. For the reasons explained
below, we affirm.
BACKGROUND
Thasha A. Boyd (“Ms. Boyd”) was employed as a Vet-
erans Service Representative as a probationary employee
at the Department of Veterans Affairs’ (“DVA”) Veterans
Benefits Administration’s Atlanta Regional Office. Prior
to her employment with the DVA, Ms. Boyd was employed
at the Department of Labor (“DOL”) as an Immigration
Program Analyst from May 3, 2010 to April 4, 2011.
Subsequent to her departure from DOL and prior to her
employment with the DVA, Ms. Boyd worked at the
Internal Revenue Service.
On December 7, 2016, an employee of the Disabled
American Veterans (“DAV”), Matthew Jahn (“Mr. Jahn”),
filed a complaint alleging that Ms. Boyd had been making
sexual advances towards him. Mr. Jahn’s complaint
stated that he had informed Ms. Boyd that he was in a
relationship, but that Ms. Boyd “continue[d] to harass
[him],” and that “she has started to touch my leg, back,
and tries to kiss my neck.” Appx51. 1 According to Mr.
Jahn, Ms. Boyd also asked him whether “when [he] got
home, if [he] was going to think about [having sex with]
her.”
Id.
On December 12, 2016, Ms. Boyd’s supervisor, Chan-
tal Wynter (“Ms. Wynter”), issued a Stay Away Notifica-
1 All citations to “Appx” herein refer to the Separate
Appendix for Respondent.
BOYD v. DVA 3
tion (“SAN”) to Ms. Boyd. The SAN stated that
“[e]ffective immediately, and until further notice, you are
instructed to have absolutely no contact or (writ-
ten/verbal) communication with Matthew Jahn, DAV
Representative. Violation of these instructions may
result in disciplinary or adverse action being taken
against you.” Appx53. The SAN also stated that if Ms.
Boyd had a business need to contact Mr. Jahn, she should
consult with Ms. Wynter or a “designated management
official at the Veterans Service Center so that appropriate
contact can be arranged.”
Id.
On December 13, 2016, Mr. Jahn reported that he ar-
rived at work to discover a letter and a drink on his desk.
He maintained that both were from Ms. Boyd. Later that
same day, Ms. Boyd attempted to make contact with Mr.
Jahn while he was outside walking on the DVA campus
after lunch. According to Mr. Jahn, Ms. Boyd approached
him and said that since they were not in the DVA build-
ing, they could talk outside. Mr. Jahn informed Ms. Boyd
that there was a no contact order in effect, and she re-
sponded that she would therefore leave him alone.
On December 21, 2016, Ms. Boyd received a memo-
randum from the Veterans Service Center Manager
notifying her of a temporary reassignment of her duty
location. The memorandum directed Ms. Boyd to work
from home until further notice, pending an inquiry into
Mr. Jahn’s allegations. Ms. Boyd was also instructed not
to return to the DVA’s Atlanta Regional Office for any
reason unless approved by her supervisor. On December
28, 2016, Ms. Boyd received a second memorandum
instructing her to report to a temporary duty location at
the Health Eligibility Center as an alternate work site.
On January 12, 2017, by memorandum, Ms. Boyd was
directed to return to her official duty station at the DVA’s
Atlanta Regional Office.
4 BOYD v. DVA
During this time, the DVA conducted a fact-finding
investigation into the allegations contained in Mr. Jahn’s
complaint. On February 9, 2017, the DVA proposed that
Ms. Boyd be removed from her position based on two
charges of misconduct: (1) inappropriate conduct, and (2)
failure to follow her supervisor’s instructions. Ms. Boyd
submitted a written response to the proposed removal on
February 23, 2017. On April 18, 2017, the Director of the
DVA’s Atlanta Regional Office issued a decision sustain-
ing the charges against Ms. Boyd and found that the
penalty of removal was appropriate. Ms. Boyd’s removal
was made effective on April 24, 2017.
On April 20, 2017, Ms. Boyd appealed the DVA’s re-
moval decision to the Merit Systems Protection Board
(“Board”). An administrative judge upheld the removal
action. Ms. Boyd petitioned for review. We have jurisdic-
tion pursuant to 5 U.S.C. § 7703.
DISCUSSION
Our standard of review requires us to “hold unlawful
and set aside any agency action, findings, or conclusions
found to be—(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c). We will not overturn a
Board decision as long as it is supported by relevant
evidence that a “reasonable mind might accept as ade-
quate to support a conclusion.” Jacobs v. Dep’t of Justice,
35 F.3d 1543, 1546 (Fed. Cir. 1994) (citing Brewer v. U.S.
Postal Serv.,
647 F.2d 1093, 1096 (Ct. Cl. 1981)). An
agency must prove the charged misconduct by a prepon-
derance of the evidence. Pope v. U.S. Postal Serv.,
114
F.3d 1133, 1148 (Fed. Cir. 1997).
BOYD v. DVA 5
I. Inappropriate Conduct
According to Ms. Boyd, the administrative judge erred
in finding that the DVA had substantial evidence to prove
its charges of inappropriate conduct because the DVA was
essentially charging Ms. Boyd with sexual harassment
and insubordination. Therefore, Ms. Boyd contends the
DVA was required to prove the elements of sexual har-
assment to support its inappropriate conduct charge. The
administrative judge addressed this claim and explained
that the DVA did not charge Ms. Boyd with sexual har-
assment, but was rather “recapping the appellant’s con-
duct as characterized by Mr. Jahn in his written
complaint.” Appx9. The administrative judge further
explained that a charge of inappropriate conduct does not
require a showing of intent, and relying on Mr. Jahn’s
characterization of her behavior does not turn the inap-
propriate conduct charge into one of sexual harassment.
Id.
Substantial evidence supports the administrative
judge’s findings and conclusions of inappropriate conduct.
With respect to the first specification of unwanted sexual
advances towards Mr. Jahn, the administrative judge
determined that Mr. Jahn’s complaint and his and his co-
workers’ statements were credible. For example, Mr.
Jahn was not a DVA employee and had no reason to
benefit from filing a complaint against Ms. Boyd. See
Appx7. Further, the assertions made in Mr. Jahn’s
complaint were consistent with the statements that he
and his co-workers made to DVA investigators. See
Appx8. The administrative judge also noted that Ms.
Boyd did not deny the allegations contained in the specifi-
cation for inappropriate conduct.
Ms. Boyd also argues that Mr. Jahn’s allegations in
his complaint were inconsistent with his statements to
DVA investigators. Specifically, she argues that after Mr.
Jahn’s complaint was filed, Mr. Jahn responded to ques-
6 BOYD v. DVA
tions from investigators by stating that Ms. Boyd’s con-
tacts with him “weren’t too much of a concern with him.”
Pet’r’s Br. 13. But that statement was made with respect
to Ms. Boyd’s hugging him. Mr. Jahn went on to state
that additional unwanted physical contact from Ms. Boyd
escalated to the point that “it became too much.”
Appx105. Thus, the administrative judge properly deter-
mined that sufficient evidence supports the agency’s first
specification.
With respect to the second specification of inappropri-
ate conduct—that Ms. Boyd was disrespectful and rude
during a meeting conducted by her supervisor on Decem-
ber 6, 2016—the administrative judge reviewed the
evidence and found that “the overwhelming weight of the
evidence supports that [Ms. Boyd] was disrespectful and
rude during the meeting and called her co-workers liars”;
and that Ms. Boyd failed to provide any evidence of a
hostile work environment or retaliation to discredit the
statements of her co-workers. See Appx12–13. We con-
clude that sufficient evidence supports the agency’s sec-
ond specification.
II. Failure to Follow a Supervisor’s Instructions
To prove a charge of failure to follow a supervisor’s in-
structions, an agency must establish that the employee (1)
was given proper instructions, and (2) failed to follow the
instructions. Hamilton v. USPS, 71 M.S.P.R. 547, 555–56
(1996). It is not necessary for the agency to prove that a
failure to follow instructions was intentional.
Id.
We conclude that substantial evidence supports the
administrative judge’s finding that Ms. Boyd failed to
follow her supervisor’s instructions by violating the terms
of the SAN. The administrative judge found that the SAN
provided proper instruction to Ms. Boyd because her
supervisors had authority to direct Ms. Boyd in work-
related matters and the SAN did not direct Ms. Boyd to do
anything illegal or improper. Appx15. The administra-
BOYD v. DVA 7
tive judge also found evidence that supported Mr. Jahn’s
allegation that Ms. Boyd violated the SAN by entering his
workplace after the SAN was issued and placing a drink
and note on Mr. Jahn’s desk. For example, the Board
relied on the DVA investigators’ determination that Ms.
Boyd’s work badge had been used to enter Mr. Jahn’s
general work area at the same time. Appx16.
The administrative judge also determined that Ms.
Boyd violated the SAN by approaching and speaking to
Mr. Jahn outside his office building. Ms. Boyd never
refuted the allegation, but rather argued that the SAN
was confusing as to what areas of the DVA office building
or off-duty time the SAN applied. The administrative
judge found that the SAN was “sufficiently clear that a
reasonable person would find that it prohibited their
contact with Mr. Jahn anywhere on the VA campus.”
Appx18.
Ms. Boyd’s only argument in response to this charge
is that “the [administrative judge] alleges that Mr. Jahn
understood what the [SAN] consisted of, however Mr.
Jahn made no such statement.” Pet’r’s Br. 15. Mr. Jahn’s
memorandum to his supervisor on December 13, 2016
describing Ms. Boyd’s attempts to contact him shows that
he clearly understood the SAN to mean that Ms. Boyd
was not to contact him. Accordingly, the administrative
judge’s determination should not be disturbed.
III. Ms. Boyd’s Affirmative Defenses
The administrative judge addressed Ms. Boyd’s af-
firmative defenses of (1) whistleblowing, (2) due process,
(3) harmful error, (4) reprisal for prior Equal Employment
Opportunity activity, and (5) reprisal for writing to her
Congressman, and determined that she did not prove any
of them. See Appx19–37. Because the administrative
judge’s conclusions were supported by substantial evi-
dence, we agree for the same reasons.
8 BOYD v. DVA
CONCLUSION
Ms. Boyd advances several other arguments, but we
find these arguments equally unpersuasive. We find no
reversible error in the Board’s decision and therefore
affirm.
AFFIRMED
COSTS
No costs.
