Carter v. Defense ( 2022 )

Case: 22-1305 Document: 33 Page: 1 Filed: 06/14/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KATHY LYNN CARTER,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2022-1305
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-21-0485-I-1.
______________________
Decided: June 14, 2022
______________________
KATHY L. CARTER, Brandywine, MD, pro se.
ERIC JOHN SINGLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, PATRICIA M. MCCARTHY, FRANKLIN E. WHITE, JR.
______________________
Before MOORE, Chief Judge, DYK and CHEN, Circuit
Judges.
Case: 22-1305 Document: 33 Page: 2 Filed: 06/14/2022
2 CARTER v. DEFENSE
PER CURIAM.
Petitioner Kathy Lynn Carter appeals a decision by the
Merit Systems Protection Board affirming the Department
of Defense’s (Defense) decision removing her from federal
service for unauthorized absences and failure to follow in-
structions by refusing to perform telework during the novel
coronavirus pandemic. Carter v. Dep’t of Def., No. DC-
0752-21-0485-I-1, 2021 WL 5080549 (M.S.P.B. Oct. 28,
2021) (Board Decision) (Appx. 5–31). 1 Ms. Carter requests
reversal and reinstatement or adjustment of her retire-
ment date. 2 Pet. Br. at 16. Because we conclude that the
Board’s decision is supported by substantial evidence and
is not arbitrary, capricious, an abuse of discretion, or con-
trary to law, we affirm.
BACKGROUND
Before her removal, Ms. Carter was an Acquisition and
Financial Support Specialist with Defense’s Office of Net
Assessment (ONA). Appx. 5; Appx. 250. In March 2020
and in response to the novel coronavirus pandemic, Ms.
Carter was authorized for “Weather and Safety Leave.”
Appx. 214–15. Keith Walters, chief of staff for ONA, sub-
sequently informed her that she could not remain on leave
throughout the pandemic and arranged for her to tele-
work—i.e., provided a laptop, network-access, a detailed
outline of her duties and responsibilities, and necessary
1 “Appx.” citations herein refer to the appendix filed
concurrently with Petitioner’s brief. Additionally, because
the reported version of the Board’s decision is not pagi-
nated, citations are to the version of the Board decision in-
cluded in the appendix—e.g., Board Decision at 1 can be
found at Appx. 5.
2 Prior to her removal, Ms. Carter submitted a re-
quest to retire, which Defense granted, and she retired ef-
fective June 3, 2021. Appx. 250.
Case: 22-1305 Document: 33 Page: 3 Filed: 06/14/2022
CARTER v. DEFENSE 3
teleworking resources and training. Appx. 78–93; Appx.
215. Ms. Carter, however, did not respond to Mr. Walters
nor otherwise attempt to telework. Appx. 215.
On December 8, 2020, Mr. Walters notified her that she
needed to complete required telework training no later
than December 15, 2020, explained that she was required
to begin teleworking on January 4, 2021, and stated that
she was permitted to take some of her “197 hours of
use/lose leave” but was not authorized to take administra-
tive leave. Appx. 94. Ms. Carter responded to Mr. Walters
the same day, stating:
Please stop asking about telework. Talk with Col
Regan (prior chief of staff), my supervisor and you,
I am no longer interest in telework agreement. Do
not schedule annual leave. I am already on
weather and safety leave.
Appx. 207. The next day, Mr. Walters issued a written
memorandum notifying her that, effective January 4, 2021,
she would not be authorized for Weather and Safety Leave,
and would be required to report for duty via telework on
that date pursuant to Defense’s continuity of operations
plan. Appx. 119. The memorandum again instructed her
to complete the required telework training and informed
her that failure to follow the procedures outlined in the no-
tice would result in disciplinary action up to and including
removal. 3 Appx. 119–20.
Ms. Carter did not complete the required training or
begin telework in accordance with Mr. Walters’s memoran-
dum email instructions. Appx. 204; Appx. 216. Conse-
quently, Mr. Walters informed her on January 12, 2021,
3 To the extent that Ms. Carter contends that she did
not have prior notification of potential removal, see Pet. Br.
at 10, the Walters memorandum provided such notice, see
Appx. 119–20.
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4 CARTER v. DEFENSE
that she was absent without leave (AWOL), retroactive as
of January 4, 2021, the date upon which she was to begin
teleworking. 4 Appx. 204. Since Ms. Carter did not report
for duty until February 4, 2021, her records reflected her
AWOL status from January 4 through February 3, 2021.
See Appx. 225; see also Appx. 105.
On April 7, 2021, Defense issued a “Notice of Proposed
Removal” based on: (1) AWOL charges, with 21 supporting
specifications corresponding to each day she did not report
for telework duty, and (2) failure to follow instruction
charges, with 23 supporting specifications corresponding to
instructions to request approval for leave and to complete
required telework training. Appx. 214; Appx. 216–20. Ms.
Carter provided a written response on April 15, 2021,
Appx. 103–05, and Defense issued a final decision on May
21, 2021, 5 ordering her removal effective June 4, 2021,
Appx. 223. Ms. Carter retired instead. Appx. 250.
On June 21, 2021, Ms. Carter appealed her removal to
the Board. Board Decision at 1. On October 28, 2021, an
administrative judge issued an initial decision on her ap-
peal, which became the Board’s final decision when she did
not petition for Board review within 35 days. See 5 C.F.R.
§ 1201.113; Board Decision at 20. The Board found that
Defense proved all of the charged misconduct by a prepon-
derance of the evidence. Id. at 6–15. The Board rejected
Ms. Carter’s argument that Defense had no authority to
compel her to telework, noting that Defense’s written poli-
cies provided the necessary authorization. Id. at 16. The
Board also rejected Ms. Carter’s assertion that she did not
4 To the extent that Ms. Carter contends that she
was unaware that her AWOL status would be recorded, see
Pet. Br. at 10, the record evidence indicates otherwise, see
Appx. 204.
5 Defense subsequently amended its decision on May
24, 2021. Appx. 243.
Case: 22-1305 Document: 33 Page: 5 Filed: 06/14/2022
CARTER v. DEFENSE 5
receive notice to telework until February 3, 2021, as “in-
credible.” Id. at 11. The Board found that it was “highly
improbable” that Ms. Carter did not receive any of Mr. Wal-
ters many communications about the telework require-
ment via memorandum, phone calls, and email “as she had
no problem communicating with him using these methods
prior to December 8, 2020.” Id. at 11–12. Instead, the
Board found it was “probable that [Ms. Carter] simply re-
fused to engage in any further conversations or communi-
cations with [Mr. Walters] regarding telework.” Id.
The Board then concluded that Defense established the
requisite nexus between Ms. Carter’s actions and efficiency
of service. Id. at 17. The Board reasoned that her AWOL
status, which “by its very nature, disrupts the efficiency of
the service,” and “failure to follow instructions affect[ed]
the agency’s ability to carry out its mission.” Id. Lastly,
the Board reviewed Defense’s consideration of the Douglas
factors, 6 and concluded that Defense did not abuse its dis-
cretion in removing her from federal service as the penalty
for her conduct. Id. at 18–19. The Board, therefore, af-
firmed Ms. Carter’s removal. Id.
This appeal followed. We have jurisdiction pursuant to
5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
DISCUSSION
A
Our review of Board decisions is limited. Whiteman v.
Dep’t of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012). A
final decision by the Board must be affirmed unless it is
“(1) arbitrary, capricious, an abuse of discretion, or
6 “Douglas factors” refers to the twelve factors artic-
ulated in Douglas v. Veterans Admin., 5 M.S.P.B. 313(1981), for an agency to consider when determining
whether a penalty is appropriate.
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6 CARTER v. DEFENSE
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); see also Bannister v. Dep’t of Veterans
Affs., 26 F.4th 1340, 1342 (Fed. Cir. 2022). We review the
Board’s legal determinations de novo and its factual find-
ings for substantial evidence. Archuleta v. Hopper, 786
F.3d 1340, 1346 (Fed. Cir. 2015).
An agency must establish three things when it takes
an adverse action against an employee: (1) that, by a pre-
ponderance of the evidence, the charged conduct occurred;
(2) that there is a nexus between the conduct and efficiency
of the service; and (3) that the penalty imposed was reason-
able. Bryant v. Nat’l Sci. Found., 105 F.3d 1414, 1416 (Fed.
Cir. 1997).
B
Ms. Carter contends that Defense lacked legal author-
ity to remove her for being AWOL from telework duty or
for failing to follow instructions to telework because, under
the Telework Enhancement Act, 5 U.S.C. §§ 6501 et seq.
(TEA), she was not eligible for and could not be compelled
to telework. Pet. Br. at 9, 11–14. We disagree.
The TEA requires government agencies to establish
telework policies, determine telework eligibility, notify
agency employees of their eligibility, provide teleworking
training to eligible employees, and treat teleworkers no dif-
ferently than non-teleworkers. See 5 U.S.C. §§ 6502(a),
6503(a). Before eligible employees participate in telework,
the agency must enter into a written telework agreement
with the eligible employee that “outlines the specific work
arrangement that is agreed to.” Id. § 6502(b). Such tele-
working policies and agreements notwithstanding, the
TEA also requires agencies to “incorporate telework into
the continuity of operations plan of that agency,” id.
§ 6504(d)(1), “supersed[ing] any telework policy” “during
Case: 22-1305 Document: 33 Page: 7 Filed: 06/14/2022
CARTER v. DEFENSE 7
any period that an executive agency is operating under a
continuity of operations plan,” id. § 6504(d)(2).
The Board correctly noted that, under established De-
fense policy, Defense employees typically cannot be ordered
to telework unless their duties are designated mission-crit-
ical. Board Decision at 9; see also Appx. 150, Dep’t of De-
fense, Instruction 1035.01, Telework Policy, Enclosure 3
§ 2(f) (Apr. 7, 2020) (Telework Policy) (“Although use of tel-
ework is encouraged, employees cannot be ordered to tele-
work, unless the employee’s duties are designated as
mission-critical and the employee is required to report to
an alternative worksite or the employee’s telework agree-
ment addresses this requirement.”); U.S. Off. of Pers.
Mgmt., 2021 Guide to Telework and Remote Work in the
Federal Government, at 14 (Nov. 2021) (“[T]he Act does not
obligate an employee to participate in an agency telework
program. Accordingly, employee participation in a tele-
work program is voluntary.”).
Although Ms. Carter’s duties were not designated mis-
sion-critical, the Board correctly found that, in light of the
novel coronavirus pandemic, Defense had authority to re-
quire her to telework pursuant to its continuity of opera-
tion (COOP) policies. Board Decision at 10–11, 16.
Defense’s COOP policies “supersede the telework policy”
and provide that employees not normally eligible for tele-
work may nonetheless be required to telework during a
pandemic:
Employees who are telework-ready (i.e., approved
and equipped for routine or situational telework)
who are not able to report to their assigned office
location due to a government closure from a natural
or manmade emergency event (e.g., snow emer-
gency, flood, hurricane, earthquake, wild fire, act
of terrorism, pandemic) will telework each regu-
larly scheduled work day during the emergency sit-
uation. Contingent upon supervisory approval,
Case: 22-1305 Document: 33 Page: 8 Filed: 06/14/2022
8 CARTER v. DEFENSE
telework-ready employees may telework when gov-
ernment offices are open with the option for un-
scheduled telework when weather conditions make
commuting hazardous, or similar circumstances
compromise employee safety. During any period
that a WHS-serviced Component is operating un-
der the COOP plan, that plan will supersede the tel-
ework policy and the provisions of the telework
agreement.
***
In the event of a pandemic health crisis, employees
with COOP responsibilities, Service members, and
employees who do not have COOP responsibilities
but are trained and equipped to telework may be
asked to telework to prevent the spread of germs.
These employees or Service members should tele-
work on a regular basis to ensure their proficiency
and telework’s effectiveness in continuing opera-
tions. Employees or Service members in positions
not typically eligible for telework should telework on
a situational basis when feasible.
Dep’t of Defense, Dir. of Admin. & Mgmt., Admin. Instruc-
tion 117, Telework Program, Enclosure 3 §§ 8(f), (g)(3)
(Mar. 31, 2015) (emphasis added); see also Appx. 157–58,
Telework Policy, Enclosure 3 § 3(i)(1)–(2) (“During any pe-
riod that a Component is operating under the COOP plan,
that plan shall supersede the telework policy and the pro-
visions of the telework agreement. . . . In the event of a
pandemic health crisis, . . . . Employees or Service mem-
bers in positions not typically eligible for telework should
telework on a situational basis when feasible.”). Ms. Carter
admits that the novel coronavirus pandemic affected De-
fense’s operations, Pet. Br. at 27, and she does not chal-
lenge the validity of Defense’s COOP policies regarding
emergency telework. Moreover, Defense’s COOP policies
are consistent with § 6504(d)(1) and (2) of the TEA.
Case: 22-1305 Document: 33 Page: 9 Filed: 06/14/2022
CARTER v. DEFENSE 9
The Board further observed that, consistent with
agency policy, Defense initiated a continuity of operations
plan in response to the novel coronavirus pandemic and
provided Ms. Carter with the necessary equipment (i.e.,
laptop) and opportunities for training to work from her
home (i.e., an approved location for Ms. Carter to perform
work) so that she could telework on a situational basis. See
Board Decision at 8–10, 16; see also Appx. 78–93;
Appx. 168–69. After many months passed in which Ms.
Carter declined requests to consider teleworking, she was
instructed to commence telework on January 4, 2021,
Appx. 119, and there is no dispute that she refused to and
did not do so until February 4, 2021, Appx. 105. In view of
this evidence, the Board’s finding that Defense demon-
strated by preponderance of evidence that Ms. Carter was
AWOL from January 4 through February 3, 2021, and
failed to follow instructions to report for telework duty was
not arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law.
Regarding nexus, our review is limited by statute to
whether the Board’s affirmance meets the statutory crite-
ria. 5 U.S.C. § 7703(c). We hold in this case that it does.
An employee’s AWOL status, “by its very nature, dis-
rupts the efficiency of the service,” and is therefore a proper
basis for removal. See Davis v. Veterans Admin., 792 F.2d
1111, 1113 (Fed. Cir. 1986) (holding that “any sustained
charge of AWOL is inherently connected to the efficiency of
the service”); see also Bryant, 105 F.3d at 1417 (noting that,
since Davis, “both this court and the Board have routinely
held that the nexus between the charged offense and the
efficiency of the service is automatic when the charged of-
fense is AWOL”). Additionally, there is a direct relation-
ship between service efficiency and an agency’s rules and
regulations regarding attendance and authorized absences
because an employee’s failure to follow such instructions
inherently affects the agency’s ability to carry out its mis-
sion. Accordingly, the Board did not err in concluding that
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10 CARTER v. DEFENSE
Defense established the requisite nexus between Ms.
Carter’s AWOL and failure to follow actions and the effi-
ciency of the service. Board Decision at 17.
Lastly, we are satisfied that the removal penalty se-
lected by Defense, as affirmed by the Board, was supported
by substantial evidence and was not an abuse of discretion
or violation of law. The record in this case establishes that
both Defense and the Board properly considered the rele-
vant aggravating factors based on Ms. Carter’s failure to
report for telework duty and mitigating factors based on
her prior, satisfactory performance record. Board Decision
at 18–19; Appx. 226 (Defense’s consideration of Douglas
factors). Moreover, Defense specifically “considered the
consistency of the penalty with that imposed upon other
employees for the same offense and the adequacy of alter-
native sanctions to deter future misconduct,” noting that
“[o]ther employees have been removed for AWOL and Fail-
ure or Delay in Carrying Out Written Regulations, Orders,
Rules, Procedures, or Instructions.” Appx. 226. In view of
this evidence, we cannot say that the Ms. Carter’s removal
is so “outrageously disproportionate” to the offense as to
constitute an abuse of discretion or violation of law. See
Yeschick v. Dep’t of Transp., 801 F.2d 383, 384–85 (Fed.
Cir. 1986).
C
Ms. Carter also argues that Defense failed to provide
advance notice of disciplinary action pursuant to 5 U.S.C.
§ 7513(b)(1). Pet. Br. at 6–7, 9–10, 15–16. We disagree.
Pursuant to § 7513(b)(1), “[a]n employee against whom
an action is proposed is entitled to” inter alia “at least 30
days’ advance written notice.” Since Ms. Carter received
Defense’s Notice of Proposed Removal on April 7, 2021, De-
fense did not issue its final decision until May 24, 2021, and
her removal was not effective until June 4, 2021, she re-
ceived the required 30 days’ advance notice. Appx. 214;
Case: 22-1305 Document: 33 Page: 11 Filed: 06/14/2022
CARTER v. DEFENSE 11
Appx. 243. We therefore reject petitioner’s procedural ar-
gument.
CONCLUSION
We have considered Ms. Carter’s remaining arguments
and do not find them persuasive. For the foregoing rea-
sons, the Board did not err in affirming Defense’s removal
action against Ms. Carter. Accordingly, we affirm the
Board’s decision.
AFFIRMED
COSTS
No costs.