Tammy_R Rodden v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMMY RENEE RODDEN, DOCKET NUMBER
Appellant, CH-0714-19-0340-I-1
v.
DEPARTMENT OF VETERANS DATE: August 14, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Janet Constance , Kansas City, Missouri, for the appellant.
Robert J. Harrison , Hot Springs, Arkansas, for the appellant.
Ruth Russell , Esquire, Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal pursuant to 38 U.S.C. § 714. For the reasons discussed
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
below, we GRANT the appellant’s petition for review, VACATE the initial
decision, and REMAND the case to the Central Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was a GS-6 Practical Nurse for the agency. Initial Appeal
File (IAF), Tab 8 at 16. Suspecting that the appellant was abusing sick leave, on
January 9, 2019, her supervisor placed her under a leave restriction, which
provided in relevant part as follows:
Effective immediately, you are required to present me a statement
from your private physician for any absence you claim is due to
sickness for you or a family member. This statement is to indicate
the date(s) you visited the doctor and his/her statement that you were
unable to report for duty for the entire period of your absence on the
first day you return to duty. Sick leave must be requested on the first
day of the absence.
Id. at 62.
¶3 Subsequently, on March 27, 2019, the agency proposed the appellant’s
removal for attendance-related incidents occurring both before and after the leave
restriction letter, ranging from November 2018 to March 2019. Id. at 28-31. In
its proposal notice, the agency charged the appellant with three specifications of
failure to follow sick leave abuse restriction memorandum, five specifications of
absence without leave (AWOL), and seven specifications of failure to follow
leave requesting procedures. Id. at 28-29. After the appellant responded, the
deciding official issued a decision removing her effective April 17, 2019. Id.
at 16, 22-27. The deciding official sustained all three charges and all the
supporting specifications except for Charge 2, Specification 2. Id. at 22. The
agency removed the appellant pursuant to the Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017 (VA Accountability
Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (codified at 38 U.S.C.
§ 714).
3
¶4 The appellant filed a Board appeal, challenging the merits of the removal
and raising affirmative defenses of harmful procedural error and retaliation for
filing a prior Board appeal. IAF, Tab 1 at 3, 5, Tab 18 at 2-5. After a hearing,
the administrative judge issued an initial decision affirming the appellant’s
removal. IAF, Tab 38, Initial Decision (ID). The administrative judge sustained
all three charges, but she did not sustain Charge 1, Specification 3 or Charge 3,
Specifications 1 and 6. ID at 10-18. She found that the appellant failed to prove
her affirmative defenses, and that the removal penalty was reasonable and
promoted the efficiency of the service. 2 ID at 18-22.
¶5 The appellant has filed a petition for review in which she does not contest
the administrative judge’s findings of fact or legal analysis and instead argues
that the agency violated the Family and Medical Leave Act of 1993 (FMLA) and
the administrative judge abused her discretion when she excluded evidence
pertaining to her rights under the FMLA, that Charges 1 and 2 should have been
merged, and that the agency committed harmful procedural error by violating the
Master Labor Agreement between the agency and the American Federation of
Government Employees. 3 Petition for Review (PFR) File, Tab 1. The agency has
responded to the petition for review. PFR File, Tab 3.
2
On review, the parties do not challenge the administrative judge’s finding that the
agency proved that a nexus exists between the appellant’s misconduct and the efficiency
of the service. ID at 9, 18-19. We find no reason to disturb that finding and have not
addressed it further.
3
The appellant does not challenge the administrative judge’s findings on her
affirmative defense of retaliation for filing a prior Board appeal. We find that the
administrative judge applied the correct standard, and, for the reasons explained in the
initial decision, we agree with her that the appellant did not prove this claim. ID
at 19-20. The appellant’s prior Board appeal did not include any allegation of
whistleblower reprisal. Rodden v. Department of Veterans Affairs, MSPB Docket
No. CH-0752-16-0519-I-1.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge did not abuse her discretion by rejecting the appellant’s
untimely evidence concerning the FMLA.
¶6 The FMLA allows an employee to take up to 12 weeks of leave per year
(paid or unpaid) for various purposes, subject to certain notice and certification
requirements. See 5 U.S.C. §§ 6382-6383; Dias v. Department of Veterans
Affairs, 102 M.S.P.R. 53, ¶ 5 (2006), aff’d per curiam, 223 F. App’x 986 (Fed.
Cir. 2007); 5 C.F.R. §§ 630.1203(a)-(b), .1207-.1208. The agency bears the
burden of proving that it complied with the FMLA as part of its overall burden of
proving a leave-based charge. Bowen v. Department of the Navy, 112 M.S.P.R.
607, ¶ 8 (2009), aff’d per curiam, 402 F. App’x 521 (Fed. Cir. 2010).
Nevertheless, an agency does not have the burden of proving the appellant’s
nonentitlement to FMLA leave in all cases where the FMLA could potentially be
implicated. Ellshoff v. Department of the Interior, 76 M.S.P.R. 54, 74 (1997).
Unless an appellant raises nonfrivolous factual allegations, or the agency’s
evidence or allegations otherwise show that FMLA-qualifying leave was
involved, the Board will not examine this issue or require the agency to disprove
her entitlement to FMLA leave. Id.¶7 Here, the administrative judge notified the parties on May 6, 2019, that, no
later than May 31, 2019, they must file prehearing submissions identifying all
facts and issues to be adjudicated. IAF, Tab 4 at 2. The administrative judge
explicitly warned the parties that, “[i]n presenting evidence at the hearing, you
will be limited by your prehearing submissions, except for good cause shown.”
Id. at 3. In her prehearing submission, the appellant’s only mention of the FMLA
was that she was submitting as an exhibit “Medical Certification for FMLA Form
from a health care provider, but when the Appellant tried to give the form to turn
in it was not accepted.” IAF, Tab 12 at 5-6. However, the exhibits included with
the appellant’s prehearing submission did not actually include any such
document. IAF, Tab 14. Nor was the FMLA issue mentioned in the subsequent
5
prehearing conference summary or the appellant’s response thereto.
IAF, Tabs 18, 21. It was not until the morning of the scheduled hearing on
July 29, 2019, that the appellant filed a series of unexplained FMLA documents.
IAF, Tab 32 at 1, Tab 33. At the beginning of the hearing, the administrative
judge addressed the appellant’s filings and excluded the FMLA -related
documents from evidence because they were untimely filed without any showing
that they were previously unavailable and the agency would be prejudiced if they
were admitted. Hearing Recording (HR), Track 1 at 0:55.
¶8 Administrative judges have broad discretion to govern the proceedings
before them, including the authority to rule on offers of proof and receive
relevant evidence. Grubb v. Department of the Interior, 96 M.S.P.R. 361, ¶ 27
(2004); 5 C.F.R. § 120.41(b)(3). The Board will review such rulings under
an abuse of discretion standard. Lopes v. Department of the Navy, 119 M.S.P.R.
106, ¶ 11 (2012). In this case, we find that the administrative judge did not abuse
her discretion in excluding these documents from the record because they were
untimely submitted under the terms of her order, and the appellant has not shown,
or even alleged, that they were previously unavailable despite her due diligence.
IAF, Tab 4 at 2; see Fritts v. Department of Homeland Security, 102 M.S.P.R.
265, ¶ 15 n.2 (2006) (finding that an administrative judge acted within his
discretion when he excluded exhibits that an appellant offered for the first time
on the day of the hearing when the appellant did not explain why he could not
have submitted this evidence in a timely manner). The appellant had more than
3 weeks to produce these documents under the terms of the order, but she waited
an additional 2 months after the deadline only to submit them on the morning of
the hearing. 4 The appellant argues that the agency would not be prejudiced by the
4
The appellant suggests that the administrative judge’s ruling was premised on her
misapprehension that the FMLA issue was an affirmative defense. PFR File, Tab 1 at 6;
IAF, Tab 34 at 12; see Ellshoff, 76 M.S.P.R. at 74. However, based on our review of
the hearing recording, we find that the administrative judge’s ruling was based solely on
the untimeliness of the appellant’s filing, and that she mentioned the appellant’s
affirmative defenses submission as only one in a long series of missed opportunities for
6
delay in submitting this evidence because the agency was already aware that
she had invoked the FMLA in requesting leave for some of the absences at issue.
PFR File, Tab 1 at 6. However, the agency was not aware that the appellant
intended to raise the FMLA issue in her Board appeal, and we find that, by
waiting until the morning of the hearing to do so, the appellant deprived the
agency of any reasonable opportunity to prepare its case. The appellant’s vague
allusion in her prehearing submission to an undated “Medical Certification for
FMLA Form” did not constitute a nonfrivolous allegation that FMLA-qualifying
leave was involved, sufficient to trigger the agency’s burden under Ellshoff.
IAF, Tab 12 at 6.
¶9 Moreover, even assuming that the administrative judge’s ruling constituted
an abuse of discretion, the appellant has not shown that she was prejudiced by it.
It is well-settled that an administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affected a party’s substantive
rights. Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981). The
appellant asserts, without further explanation, that she attempted to raise the
FMLA issue “in conjunction with the AWOL charge.” PFR File, Tab 1 at 7;
IAF, Tab 34 at 13. However, the FMLA documents pertain chiefly to the illness
of the appellant’s husband in late 2017 and early 2018. IAF, Tab 33 at 4-7,
10-20. We are unable to discern any connection between this FMLA request and
the appellant’s unauthorized absences in late 2018 and early 2019, which
supported the removal action. The record contains another FMLA request for the
appellant’s own medical condition, which was expected to last from January 24 to
26, 2019. Id. at 8. However, none of the specifications underlying the
appellant’s removal include those dates. IAF, Tab 8 at 28-29. Finally, the
appellant argues that the agency’s own records show that she requested FMLA
leave during the time period at issue. PFR File, Tab 1 at 8; IAF, Tab 8 at 35.
However, the only entries indicating that FMLA was requested were for
the appellant to have raised the issue. HR, Track 1 at 0:55.
7
February 14 and 15, 2019, and none of the specifications cover those dates. IAF,
Tab 8 at 28, 35. For these reasons, we find that the appellant has not shown that
the outcome of the initial decision might have been different had the
administrative judge considered her untimely submission. See Jackson v.
Department of Defense, 28 M.S.P.R. 463, 465 (1985) (finding that a presiding
official’s error in issuing her initial decision before the record closed was
harmless because the documents the appellant sought to submit below would not
have changed the outcome).
The administrative judge did not err in finding that the appellant failed to prove
her affirmative defense of harmful procedural error based on alleged violations of
provisions of the collective bargaining agreement.
¶10 To prove that the agency committed a harmful procedural error under
5 U.S.C. § 7701(c)(2)(A), the appellant must show that the agency committed an
error in the application of its procedures that is likely to have caused it to reach a
different conclusion from the one it would have reached in the absence or cure of
the error. Ronso v. Department of the Navy, 122 M.S.P.R. 391, ¶ 14 (2015);
5 C.F.R. § 1201.4(r). The Board treats provisions of a collective bargaining
agreement in the same manner as agency regulations, and a violation of those
provisions may constitute harmful error. See LeBlanc v. Department of
Transportation, 60 M.S.P.R. 405, 417 (1994), aff’d, 53 F.3d 346 (Fed. Cir. 1995)
(Table); De Sousa v. Agency for International Development, 38 M.S.P.R. 522,
526 (1988). The appellant bears the burden of proving her affirmative defenses
by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C).
¶11 In this case, the appellant makes two separate arguments concerning
the agency’s alleged violations of the Master Labor Agreement. PFR File,
Tab 1 at 7-12; IAF, Tab 27. First, she argues that the agency violated Article 24,
Section 4 of the Master Labor Agreement, which places certain restrictions on the
creation, keeping, and use of notes created by supervisors about their
subordinates. PFR File, Tab 1 at 7-9; IAF, Tab 27 at 132. The appellant alleges
8
that her supervisor violated these provisions by keeping track of her absences on
a calendar outside an official system of records and using the information on the
calendar to help other officials formulate the charges without ever disclosing the
calendar to the appellant. PFR File, Tab 1 at 8-9; IAF, Tab 8 at 70, 77, 82, 84-92.
As an initial matter, we disagree with the administrative judge that the appellant
failed to raise this argument prior to the hearing. ID at 22.
¶12 We find that she timely raised it in her May 21, 2019 submission on
affirmative defenses. IAF, Tab 3 at 4, Tab 7 at 8. However, we agree with the
administrative judge’s alternative finding that any procedural error related to the
calendars was not harmful because the calendars were merely a way for the
appellant’s supervisor to summarize information that was maintained elsewhere.
ID at 22. The appellant argues that the agency failed to identify the sources of
information from which the calendars were created, but we disagree. PFR File,
Tab 1 at 9. The dates, times, and approval status of the appellant’s absences are
reflected in her time and attendance sheets, and whether the appellant utilized the
nurse call-in line to notify the agency of an unexpected absence is reflected in the
nurse call-in line records. ID at 16; IAF, Tab 8 at 71-76, 78, 81, 83. The
appellant’s remaining arguments on this issue go to whether the supervisor
violated the Master Labor Agreement, but do not address whether such violation
likely caused the agency to reach a conclusion different from the one it would
have reached in the absence or cure of the error. PFR File, Tab 1 at 9; see
Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492, ¶ 14 (2016)
(explaining that the Board will not presume an error is harmful).
¶13 Second, the appellant argues that the agency violated Article 35, Section 1
of the Master Labor Agreement when it used her approved absences as a basis for
disciplinary action. PFR File, Tab 1 at 9-12; IAF, Tab 27 at 203. She argues that
several of the specifications under Charges 1 and 3 involved approved leave.
PFR File, Tab 1 at 10. However, we agree with the administrative judge that,
under the plain language of the proposal, the agency did not discipline the
9
appellant for taking leave on those dates, but instead disciplined her for failure to
request leave properly. ID at 21; IAF, Tab 8 at 28. As the administrative judge
correctly found, the Board has generally distinguished the failure to follow leave
procedures from the taking of leave. ID at 21; see Wilkinson v. Department of the
Air Force, 68 M.S.P.R. 4, 7 (1995) (finding that an agency may pursue charges
related to failure to follow correct leave procedure even if the leave request was
ultimately approved).
¶14 The appellant attempts to distinguish Wilkinson on the basis that the instant
appeal involves a Master Labor Agreement. PFR File, Tab 1 at 11-12. However,
we see nothing in the Master Labor Agreement that is inconsistent with the
Board’s holding in Wilkinson, and we find the appellant’s arguments to the
contrary unconvincing. IAF, Tab 7 at 203. We therefore conclude that the
appellant has not shown any violation of the Master Labor Agreement, much less
a violation that rises to the level of harmful error.
¶15 Therefore, on remand, the assigned administrative judge may incorporate
these findings in the new initial remand decision. However, if any argument or
evidence presented by the parties concerning the issues on remand, as set forth
below, affects the administrative judge's analysis of these issues, the
administrative judge should address such argument or evidence in the remand
initial decision.
We nevertheless remand the appeal for the assigned administrative judge to
provide the parties with an opportunity to present evidence and argument
regarding whether the agency’s error in reviewing the proposed removal for
substantial evidence was harmful.
¶16 After the initial decision in this case was issued, the U.S. Court of Appeals
for the Federal Circuit decided Rodriguez v. Department of Veterans Affairs,
8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), in which it determined that the agency
erred by applying a substantial evidence burden of proof to its internal review of
10
a disciplinary action taken under 38 U.S.C. § 714. 5 The court in Rodriguez found
that substantial evidence is the standard of review to be applied by the Board, not
the agency, and that an agency’s deciding official must “determine[]” whether
“the performance or misconduct . . . warrants” the action at issue, applying a
preponderance of the evidence burden of proof. Id. at 1298-1301 (quoting
38 U.S.C. § 714(a)(1)). The Board subsequently issued the decision in Semenov
v. Department of Veterans Affairs, 2023 MSPB 16, ¶¶ 21-24, in which it found
that it was appropriate to apply the harmful error standard from 5 U.S.C.
§ 7701(c)(2) to an agency’s improper application of the substantial evidence
standard to its review of proposed actions taken under 38 U.S.C. § 714. The
Board also held that the Federal Circuit’s holding in Rodriguez applies to all
pending cases, regardless of when the events at issue took place. Semenov,
2023 MSPB 16, ¶ 22.
¶17 In describing the applicable burden of proof in appeals of actions taken
under 38 U.S.C. § 714 in the initial decision, the administrative judge accurately
noted that under the VA Accountability Act, the Secretary’s role is to determine
whether the decision is “warranted,” and that the Board must then determine
whether the decision is “supported by substantial evidence,” providing some
distinction between the Board’s standard of review and the agency’s burden of
proof. ID at 7-8 (quoting 38 U.S.C. § 714(a)). Despite making this distinction,
the administrative judge did not explicitly find that the agency applied a
preponderant evidence burden of proof in its internal review of the charges
against the appellant, nothing in the hearing testimony indicates that the deciding
official applied a preponderant evidence burden of proof, and the deciding
official specified in the decision letter that the charges were supported by
substantial evidence. IAF, Tab 8 at 22; HR, Track 2 at 0:20-11:06 (testimony of
the deciding official). The administrative judge and the parties did not have the
5
The VA Accountability Act was signed into law on June 23, 2017, prior to all of the
events at issue in this appeal.
11
benefit of Rodriguez, and therefore were unable to address its impact on this
appeal. Accordingly, we remand this appeal for adjudication of whether the
agency’s apparent application of the substantial evidence standard of proof was
harmful error. See Semenov, 2023 MSPB 16, ¶ 22. On remand, the
administrative judge should provide the parties with an opportunity to present
evidence and argument, including a supplemental hearing, addressing whether the
agency’s use of the substantial evidence standard in the removal decision
constituted harmful error. Id., ¶ 24. The administrative judge should then
address this affirmative defense in the remand initial decision.
On remand, the assigned administrative judge should also allow the parties to
supplement the record regarding whether the agency considered the Douglas
factors in analyzing the penalty and should determine whether the agency proved
by substantial evidence that the penalty of removal was reasonable.
¶18 After the initial decision was issued, the Federal Circuit also issued its
decision in Connor v. Department of Veterans Affairs, 8 F.4th 1319 (Fed. Cir.
2021). In Connor, the court determined that the agency and the Board must
consider and apply the nonexhaustive factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), in its review of an agency’s
penalty selection under 38 U.S.C. § 714. Connor, 8. F4th at 1325-26; see
Semenov, 2023 MSPB 16, ¶¶ 44-50 (stating that, consistent with the Federal
Circuit’s decision in Connor, the agency and the Board must apply the Douglas
factors in reviewing the penalty in an action taken under 38 U.S.C. § 714). The
court held that, although section 714 precludes the Board from mitigating the
agency’s chosen penalty, “[i]t does not alter the penalty review with respect to
the Douglas factors” and that, although the Board cannot mitigate the penalty, “if
the Board determines that the [agency] failed to consider the Douglas factors or
that the chosen penalty is unreasonable, the Board must remand to the [agency]
for a redetermination of the penalty.” Connor, 8 F.4th at 1326-27 (citing Brenner
v. Department of Veterans Affairs, 990 F.3d 1313, 1325 (Fed. Cir. 2021)
(explaining that, “if the [Board] concludes that the [agency’s] removal decision is
12
unsupported by substantial evidence, the [Board] should remand to the [agency]
for further proceedings”)).
¶19 In the initial decision, the administrative judge considered the
reasonableness of the agency’s chosen penalty and determined that the agency did
not act “outside the bounds of reasonableness” in deciding to remove the
appellant, noting the fact that the agency had considered relevant factors in
determining the appropriate penalty, including the frequency of the appellant’s
infractions, her prior discipline, the fact that the appellant failed to respond to
progressive discipline, and the impact of the appellant’s absences on the agency’s
mission and employee morale. ID at 18-19. Despite this, in discussing the
agency’s burden of proving a charge under 38 U.S.C. § 714 in her prehearing
conference order, the administrative judge noted that the Board does not have the
authority to mitigate the penalty in an action brought under section 714, and
consequently, that the Board “does not apply the Douglas factors in Section 714
cases,” and that she would “not delve into the issue of what factors the agency
relied on to choose the penalty.” IAF, Tab 18 at 2-3. Additionally, the removal
decision does not specifically identify that the deciding official considered the
relevant Douglas factors or cite to the Board’s decision in Douglas. IAF, Tab 8
at 22.
¶20 However, in her hearing testimony, the deciding official identified that she
considered the appellant’s response and “potential mitigation” but decided that a
lesser penalty was not appropriate based on the appellant’s rejection of the
offered last chance agreement. HR, Track 2 at 2:50-3:20, 7:25-8:05 (testimony of
the deciding official). The deciding official also noted the fact that the appellant
had a prior suspension and acknowledged that removal was generally “the next
step” in progressive discipline following the appellant’s prior 30-day suspension.
HR, Track 2 at 8:05-8:20 (testimony of the deciding official); IAF, Tab 8 at 22.
Additionally, although the decision letter did not cite to the Board’s decision in
Douglas or specifically indicate that the deciding official considered the Douglas
13
factors, the decision does note that the deciding official considered the frequency
of the appellant’s absences, the fact that she was “on notice” that attendance was
a crucial part of her position based on her prior admonishment for
attendance-related issues, and that the appellant’s misconduct was affecting the
agency’s mission and the morale of the unit, and acknowledged the appellant’s
4 years of service and a 2017 performance award. IAF, Tab 8 at 22; see Douglas,
5 M.S.P.R. at 305-06 (providing a nonexhaustive list of factors relevant to
penalty determinations, including, among other things, the nature and seriousness
of the offense including whether it was frequently repeated, the employee’s past
disciplinary record, the employee’s past work record, including length of service
and job performance, and the clarity with which the employee was on notice of
any rules that were violated or had been warned about the conduct in question).
¶21 Thus, the record is unclear as to whether the agency properly considered the
relevant Douglas factors in deciding to remove the appellant. The administrative
judge and the parties did not have the benefit of Connor, and therefore were
unable to address its impact on this appeal. Accordingly, remand is required for
this issue as well. On remand, the assigned administrative judge should permit
the parties to submit additional evidence and argument on the penalty issue,
including permitting the parties to present evidence at the supplemental hearing.
See Semenov, 2023 MSPB 16, ¶ 50. In reviewing the penalty, the administrative
judge should determine whether the agency proved by substantial evidence that it
properly applied the Douglas factors and whether the agency’s penalty selection
was reasonable and, if not, should remand the appellant’s removal to the agency
for a new decision on the appropriate penalty. Id. (citing Connor, 8 F.4th at
1326-27; Sayers, 954 F.3d at 1375-76, 1379). 6
6
If remanded to the agency, the agency should be mindful of its obligations to provide
the appellant with the necessary due process. See Brenner, 990 F.3d at 1324 (observing
that the VA Accountability Act maintains due process protections for employees); Ward
v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal
Deposit Insurance Corporation, 179 F.3d 1368, 1375-77 (Fed. Cir. 1999).
14
ORDER
¶22 For the reasons discussed above, we remand this appeal to the Central
Regional Office for further adjudication in accordance with this Remand Order.
As outlined above, the assigned administrative judge shall address whether the
agency’s error in applying the substantial evidence burden of proof to its action
was harmful. See Semenov, 2023 MSPB 16, ¶ 24. If the administrative judge
determines that the agency’s error in applying the incorrect burden of proof was
not harmful, then she shall determine whether the agency proved by substantial
evidence that it applied the relevant Douglas factors, and that the penalty was
reasonable. The administrative judge may, if appropriate, incorporate into the
remand decision her prior findings concerning the agency’s proof of its charges. 7
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7
If the administrative judge finds that the agency committed harmful error such that the
disciplinary action is not sustained, the administrative judge need not address the
penalty issue.