Johnson v. Department of the Treasury ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JAMES M. JOHNSON,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
__________________________
2011-3058
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH0752090691-I-1.
__________________________
Decided: June 22, 2011
__________________________
JAMES M. JOHNSON, of Racine, Wisconsin, pro se.
ROBERT C. BIGLER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and KENNETH M. DINTZER,
Assistant Director.
__________________________
JOHNSON v. TREASURY 2
Before PROST, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
James M. Johnson petitions for review of the final de-
cision of the Merit Systems Protection Board (“Board”)
affirming his removal as a Revenue Agent at the Internal
Revenue Service (“Agency”). Because the Board commit-
ted no legal error, we affirm.
I. BACKGROUND
Mr. Johnson worked as a Revenue Agent at the
Agency and performed audits as his principal duty. He
had a history, however, of missing work without permis-
sion and not following the instructions of his superiors.
In particular, Mr. Johnson incurred a five-day suspension
in April 2008 for being Absent Without Leave (“AWOL”).
Later that year he was suspended again, this time for
twenty days, for failing to follow instructions and being
AWOL. The issue on appeal arises from similar miscon-
duct.
On February 13, 2009, Mr. Johnson’s supervisor, Jean
Klajbor, requested that Mr. Johnson schedule three case
reviews by the first week of March if the cases were not
closed by March 6, 2009. She also ordered that Mr.
Johnson refer a fourth case for audit. Mr. Johnson did
not rebut Ms. Klajbor’s testimony that these four tasks
would take less than five minutes to complete. Mr. John-
son, however, failed to complete any of the tasks in the
time frame specified.
Further, Mr. Johnson was absent on March 5 and 6,
2009. Because he had taken sick leave the three previous
days, Mr. Johnson was required to submit medical docu-
mentation in order to obtain sick leave on March 5 and 6.
3 JOHNSON v. TREASURY
Mr. Johnson knew of this medical documentation re-
quirement but testified that he did not have a “regular”
doctor and did not want to wait in an emergency room to
get such documentation. He opted instead to email Ms.
Klajbor requesting annual leave for March 5 and 6. Ms.
Klajbor sent a return email to Mr. Johnson informing him
that his leave request would only be granted if he pro-
vided medical documentation by March 6. Mr. Johnson,
however, did not see this return email before he took
leave on March 5 and 6 because the email was sent to his
work account, which he did not access at home.
The Agency removed Mr. Johnson from his position on
May 15, 2009 for (1) failing to follow directives and (2)
being AWOL. After Mr. Johnson appealed to the Board
and participated in a hearing, an administrative judge
affirmed the Agency’s decision on both grounds. See
Johnson v. Dep’t of the Treasury, No. CH0752090691-I-1
(M.S.P.B. Feb. 11, 2010). The Board denied Mr. Johnson’s
petition for review making the administrative judge’s
initial decision the final decision of the Board. Mr. John-
son timely appealed.
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
II. DISCUSSION
Our scope of review for a decision by the Board is lim-
ited. We may only set aside the Board’s decision if it was
“(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see Conyers v. Merit Sys. Prot.
Bd., 388 F.3d 1380, 1381 (Fed. Cir. 2004).
JOHNSON v. TREASURY 4
To take an adverse action against an employee, an
agency must (1) “establish by preponderant evidence that
the charged conduct occurred,” (2) “show a nexus between
that conduct and the efficiency of the service,” and (3)
“demonstrate that the penalty imposed was reasonable in
light of the relevant factors set forth in Douglas v. Veter-
ans Admin., 5 MSPB 313, 5 M.S.P.R. 280, 307-08 (1981).”
Malloy v. U.S. Postal Serv., 578 F.3d 1351, 1356 (Fed. Cir.
2009). Here, the Board found that all three “adverse
action” elements were met for both the AWOL charge and
the failure to follow directives charge. For the reasons
stated below, the Board did not abuse its discretion in
reaching these conclusions.
Regarding the failure to follow directives charge, Mr.
Johnson argues that the Agency failed to submit evidence
to support this charge and that the Board misapplied the
evidence before it. This argument must fail, however.
Undisputed record evidence shows that Ms. Klajbor
instructed Mr. Johnson to complete four tasks and that he
did not complete any of them within the time frame
specified. 1 Therefore, substantial evidence supports the
findings that the charged conduct occurred and that, as a
result, the first adverse action element is met. As for the
second adverse action element, a failure to follow instruc-
tions affects an agency’s ability to carry out its mission
and is thus clearly connected to the efficiency of the
service. See Blevins v. Dep’t of the Army, 26 M.S.P.R. 101,
104 (1985), aff’d, 790 F.2d 95 (Fed. Cir. 1986). Each task
1 Mr. Johnson also argues that his approved leave
kept him from meeting the deadlines set by Ms. Klajbor.
We reject this argument, however, because it was undis-
puted that the four tasks he was assigned would take less
than five minutes to complete. The record indicates that
Mr. Johnson had ample time when he was not on leave to
complete his tasks before their due dates.
5 JOHNSON v. TREASURY
assigned by Ms. Klajbor to Mr. Johnson related directly to
Mr. Johnson’s employment with the Agency and was
generated while he was working for the Agency. Thus,
Mr. Johnson’s refusal to follow instructions, by failing to
complete these assigned tasks on time, impacted the
Agency’s ability to carry out its mission and operate
efficiently. For these reasons, the Board did not abuse its
discretion in concluding that the second adverse action
element was met.
Regarding the AWOL charge, Mr. Johnson asserts
that he provided evidence showing that this charge should
not have issued. It is undisputed, however, that Mr.
Johnson was absent from work on March 5 and 6, 2009
and that he was not granted leave for this period of time.
It is also undisputed that to obtain sick leave for those
two days, Mr. Johnson had to submit medical documenta-
tion, which he failed to do. Therefore, substantial evi-
dence supports the conclusion that Mr. Johnson was
absent from work without permission (i.e., AWOL) and
that, as a result, the charged conduct occurred. See Cooke
v. U.S. Postal Serv., 67 M.S.P.R. 401, 404 (1995), aff’d, 73
F.3d 380 (Fed. Cir. 1995) (“To support a charge of AWOL,
the agency must show both that the appellant was absent
and that either the absence was not authorized or that a
request for leave was properly denied.”). Regarding the
nexus element, “the nexus between the charged offense
and the efficiency of the service is automatic when the
charged offense is AWOL.” Bryant v. Nat’l Sci. Found.,
105 F.3d 1414, 1417 (Fed. Cir. 1997). As such, the Board
did not abuse its discretion in finding that the nexus
element was automatically met for the AWOL charge.
Next, we address the reasonableness of the Agency’s
decision to remove Mr. Johnson from his position as a
Revenue Agent (i.e., the third adverse action element).
JOHNSON v. TREASURY 6
The Board may only review a penalty imposed by an
agency to determine if the agency considered the relevant
Douglas factors and exercised managerial judgment
“within tolerable limits of reasonableness.” Douglas, 5
M.S.P.R. at 302; see also Malloy, 578 F.3d at 1356. Here,
as the Board explained, the deciding official at the Agency
considered the Douglas factors before removing Mr.
Johnson from his position. The Board also agreed with
the Agency’s conclusion that Mr. Johnson’s history of not
following directives and being AWOL was part of a clear
pattern showing that Mr. Johnson felt “no need to follow
orders unless he agree[d] with them.” Therefore, the
Board affirmed the Agency’s penalty. In conducting its
analysis, the Board considered Mr. Johnson’s argument
that he did not receive Ms. Klajbor’s denial of leave email
until after he returned to work, an argument Mr. Johnson
raises again on appeal. While declaring this fact a “miti-
gating factor,” the Board ultimately concluded that it did
not render the Agency’s penalty unreasonable. We agree
with the Board’s reasoning and find that it did not abuse
its discretion in affirming the reasonableness of the
Agency’s penalty.
Many of Mr. Johnson’s arguments on appeal are ad-
dressed in our analysis above. Additionally, Mr. Johnson
argues that the administrative judge “was heavily biased
in favor of the agency.” To succeed on this claim, Mr.
Johnson must show that the administrative judge exhib-
ited a “deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Dep’t of the
Army, 287 F.3d 1358, 1363 (Fed. Cir. 2002). Mr. Johnson
asserts that the administrative judge showed bias by
going off the record several times during the hearing over
objections and by not taking into consideration prohibited
personnel practices that were allegedly violated. Such
conduct does not rise to the level of showing a deep-seated
7 JOHNSON v. TREASURY
favoritism or antagonism. Instead, the administrative
judge acted well within the bounds of his responsibilities.
Therefore, we reject Mr. Johnson’s claim of bias.
For these reasons, the decision of the Board is af-
firmed.
COSTS
Each party shall bear its own costs.
AFFIRMED