Michelle Romine v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE ROMINE, DOCKET NUMBER
Appellant, PH-0752-18-0248-I-2
v.
DEPARTMENT OF THE ARMY, DATE: May 28, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michelle Romine , Huntington, West Virginia, pro se.
Rayetta Wilcoxon Waldo , Esquire, Huntington, West Virginia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
(1) apply the correct analytical framework to the appellant’s affirmative defense
of disparate treatment disability discrimination and find that she established that
she has a disability, and (2) consider the appellant’s length of service and medical
conditions as mitigating factors in the penalty determination, we AFFIRM the
initial decision.
BACKGROUND
In October 2016, the appellant transferred to the agency as a GS-07
Contract Specialist. Romine v. Department of the Army, MSPB Docket
No. PH-0752-17-0373-I-1, Initial Appeal File (0373 IAF), Tab 6 at 55. 2 One
month later, after acquiring the flu and developing bronchitis, she began using
sick leave 3 and annual leave, as well as leave without pay (LWOP). Id. at 27-33,
41, 44-45, 48-49. The appellant also invoked the Family and Medical Leave Act
(FMLA), and exhausted her FMLA-protected leave on February 16, 2017. Id. at
41. She was informed that she would be documented as absent without leave
(AWOL) for absences after that date. Id.2
The Board may take official notice of matters that can be verified, including
documents or actions in other Board appeals. Wofford v. Department of Justice,
115 M.S.P.R. 468, ¶ 5 n.4 (2010); see 5 C.F.R. § 1201.64.
3
By her own admission, the appellant transferred to the agency with a negative sick
leave balance of well over 100 hours. Romine v. Department of the Army, MSPB
Docket No. PH-0752-18-0248-I-2, Appeal File, Tab 18, Hearing Compact Disc
at 3:27:50 (testimony of the appellant).
3
After requesting a reasonable accommodation, the appellant submitted a
letter from an advanced practice registered nurse who indicated that the appellant
would need to absent herself from work for at least 12 months due to psychiatric
issues, and a letter from a psychologist who indicated that the appellant could
continue working so long as her work schedule could accommodate her
approximately 3 hours of therapy per week. 0373 IAF, Tab 16 at 14, 18-19, 43.
On June 19, 2017, the agency informed the appellant that she needed to submit
additional medical documentation to clarify the inconsistent recommendations.
Id. at 14.
On June 30, 2017, the agency removed the appellant based on her physical
inability to perform the duties of her position. 0373 IAF, Tab 6 at 13-14. One
week later, the agency received a letter from the appellant’s psychologist stating
that the appellant could continue to work so long as certain accommodations were
made. 0373 IAF, Tab 16 at 12-13. On July 11, 2017, the agency denied her
request for reasonable accommodation because she had already been removed.
Id. at 8.
The appellant appealed her removal to the Board, asserting that the agency
failed to provide her with a reasonable accommodation. 0373 IAF, Tab 1. The
agency thereafter canceled her removal and returned her to her position effective
October 10, 2017. 0373 IAF, Tab 11 at 6. On January 18, 2018, the agency and
the appellant entered into a settlement agreement requiring, inter alia, the
appellant to withdraw her Board appeal and the agency to provide her back pay
for the period from August 6, 2017, through September 30, 2017. 0373 IAF,
Tab 21 at 4-5. On January 19, 2018, the administrative judge found that the
parties understood and freely accepted the terms of the agreement, that the parties
wanted the agreement entered into the record so that the Board would retain
4
jurisdiction to enforce its terms, and that the agreement was lawful. 0373 IAF,
Tab 23. He therefore dismissed the appeal a settled. 4 Id.Also on January 19, 2018, the agency proposed the appellant’s removal
based on 112 specifications of AWOL and 34 specifications of failure to follow
leave-requesting procedures. Romine v. Department of the Army, MSPB Docket
No. PH-0752-18-0248-I-1, Initial Appeal File (IAF), Tab 4 at 29-50. The
appellant was charged with AWOL for the period between February 17, 2017, and
June 29, 2017, as well as for the period between October 19, 2017, and
November 15, 2017. Id. at 30-42. She was also charged with failure to follow
leave-requesting procedures for the period between November 16, 2017, and
January 5, 2018. Id. at 42-46.
The agency removed the appellant based on these charges effective
March 2, 2018. Id. at 8, 11-14. The appellant then filed this appeal, asserting
that she was removed because of her disability and in retaliation for her
whistleblowing and prior Board appeal. IAF, Tab 1 at 5. After holding the
appellant’s requested hearing, the administrative judge 5 found that the agency
proved all of its specifications under both charges. Romine v. Department of the
Army, MSPB Docket No. PH-0752-187-0248-I-2, Appeal File (I-2 AF), Tab 19,
Initial Decision (ID) at 3-6. He also found that the appellant failed to establish
her affirmative defenses of retaliation for filing a prior Board appeal, disability
discrimination, and whistleblower reprisal. ID at 6-14. The administrative judge
4
The appellant thereafter filed a petition for enforcement, which the administrative
judge granted after finding that the agency materially breached the settlement
agreement by failing to provide the appellant with the full amount of back pay she was
due. Romine v. Department of the Army, MSPB Docket No. PH-0752-17-0373-C-1,
Initial Decision (Mar. 8, 2019). That finding of noncompliance was referred to the
Board’s Office of General Counsel to obtain compliance. The Board found the agency
in compliance and therefore dismissed the petition for enforcement. Romine v.
Department of the Army, MSPB Docket No. PH-0752-17-0373-X-1, Final Order (May
17, 2023)
5
The administrative judge in the instant appeal was not the administrative judge in the
appellant’s 2017 appeal.
5
further found that the agency established nexus and the reasonableness of the
penalty, and he therefore upheld the appellant’s removal. ID at 14-16.
The appellant has filed a petition for review, arguing that the agency
improperly disciplined her for her absences that occurred before her prior
removal, which was rescinded. Petition for Review (PFR) File, Tab 2. She also
alleges that she was medically incapacitated for the period between October 19,
2017, and November 15, 2017, and asserts that the agency ordered her back to
work without a reasonable accommodation. Id. The agency has filed a response
to the petition for review. PFR File, Tab 4. 6
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its AWOL charge.
The agency is not precluded as a result of the first removal action
from charging the appellant with AWOL for the period prior to
June 30, 2017.
Before considering whether the agency proved its charge of AWOL, we
first address the appellant’s argument that the agency is precluded from
disciplining her for the 93 specifications of AWOL pertaining to the time period
before her first removal—on June 30, 2017. IAF, Tab 10 at 4; PFR File, Tab 1 at
4. For the reasons discussed below, we find the appellant’s argument without
merit.
When an agency imposes an adverse action based on an employee’s
misconduct, it is barred from subsequently taking another adverse action for the
same reason. Adamek v. U.S. Postal Service, 13 M.S.P.R. 224, 226 (1982).
However, if successive disciplinary actions have different bases, although they
may be related, they are not barred by the prohibition against double punishment.
See Bowen v. Department of the Navy, 112 M.S.P.R. 607, ¶ 13, (2009) (upholding
the agency’s charge of insubordination based on the appellant’s refusal to obey an
6
After the record closed on review, a number of corrections were made regarding the
placement of particular pleadings filed below under particular tab numbers. We cite to
the record as it exists at the time of the issuance of this final decision.
6
order on five dates, despite the fact that he had already been reprimanded for a
similar refusal on another date in between those five dates), aff’d, 402 F. App’x
521 (Fed. Cir. 2010).
Here, the first removal action was based on the appellant’s medical
inability to perform the duties of her position and was non -disciplinary in nature.
0373 IAF, Tab 6 at 13-14, 16-18. As the first proposal notice stated, the
appellant told the agency in May 2017 that she would be unable to return to work
until “at least May 2018.” Id. at 18. Although the appellant’s absences between
November 2016 and May 2017 and the fact that she was being carried in AWOL
status were noted in the proposal notice, these were not the bases of her removal.
Id. at 16-18.
The second removal action, by contrast, was based on the appellant’s
AWOL and failure to follow leave-requesting procedures. IAF, Tab 4 at 11. In
the second removal action, the agency did not charge the appellant with being
medically unable to perform the duties of her position. Id. at 11-14, 29-50.
Accordingly, we find that the agency is not barred, by virtue of its prior removal
action, from bringing the instant removal action that is based, in part, on the
appellant’s AWOL prior to the June 30, 2017 first removal action. See Bowen,
112 M.S.P.R. 607, ¶ 13.
The agency is not precluded by the settlement agreement resolving
the appellant’s first appeal from charging the appellant with AWOL.
Regarding whether the settlement agreement in the appellant’s first appeal
precludes the agency from charging the appellant with AWOL, we find that it
does not. 7 The Board has found that when an agency settled two employees’
appeals of their discipline for “threatening behavior” during a meeting, and the
7
The appellant also asserts that she never would have entered into a settlement
agreement if she knew the agency was going to take steps to remove her “the very next
day.” PFR File, Tab 2 at 5. The appropriate method for challenging the validity of a
settlement agreement is to file a petition for review of the decision dismissing the
appeal as settled. Lange v. Department of the Interior, 98 M.S.P.R. 146, ¶ 3 (2005).
The appellant has not filed such a petition for review.
7
settlement agreement provided that it “resolved the issues raised in these
appeals,” the agency was precluded from disciplining them again for
their “disrespectful and abusive conduct” during that same meeting.
Davis v. Department of Veterans Affairs, 69 M.S.P.R. 627, 629-30 (1996). In
construing the terms of a settlement agreement, the words of the agreement itself
are of paramount importance to determine the intent of the parties at the time they
contracted. Id. at 630. The Board will not imply a term into an agreement that is
unambiguous, and will not hear a party’s objections about matters that were not
included in a settlement agreement. Id.Here, the agency and the appellant entered into an “agreement in full
settlement of [the prior 2017] appeal.” 0373 IAF, Tab 21 at 4. The agreement
was otherwise silent as to whether it resolved “the issues” raised in the appeal.
Id. at 4-5. The agreement did not explicitly prohibit, for instance, the agency
from taking a new adverse action against the appellant for her absences prior to
her first removal. Id. Accordingly, we will not imply such a term into the
agreement, and we instead find that the settlement agreement does not preclude
the agency’s AWOL charge in this case. See Davis, 69 M.S.P.R. at 630.
The agency proved 93 specifications of AWOL for the dates prior to
June 30, 2017.
Having determined that the agency is not precluded from bringing its
AWOL charge, we now consider whether the agency has proven the charge. To
prove an AWOL charge, an agency must demonstrate that the employee was
absent without authorization and, if the employee requested leave, that the request
was properly denied. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 28
n.5 (2015), overruled in part by Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 23-25. If an employee has sufficient sick leave to cover the
period in question, the agency must grant a leave request when the employee has
provided administratively acceptable evidence of incapacitation due to illness or
injury, regardless of whether the employee has complied with applicable leave
8
procedures. Patterson v. Department of the Air Force, 74 M.S.P.R. 648, 652
(1997). When an employee has exhausted all leave, an agency may deny LWOP
and place the employee on AWOL when there is no foreseeable end to the
employee’s absence and the absence is a burden to the agency. Id.The agency’s time and attendance records reflect that the appellant was
carried in AWOL status on each of the 112 dates she was charged with being
AWOL. IAF, Tab 4 at 30-42, 54-57. Importantly, the administrative judge found
it to be undisputed that the appellant had no annual or sick leave balances during
the periods she was listed as AWOL and had also exhausted all of her
FMLA-protected leave. ID at 3. The appellant has not challenged these findings
on review. PFR File, Tab 2. Nor has the appellant challenged the administrative
judge’s finding that she admitted to being absent on the dates she was charged
with AWOL and that the proposing official testified that the appellant was not
authorized to be absent on those dates and/or did not have any leave balances to
use for those absences. ID at 4.
In this appeal, the appellant has not asserted, regarding any of the dates
specified in the first 93 specifications of AWOL (pertaining to her absences
between February 17, 2017, and June 29, 2017), that her absences were due to
medical incapacitation. IAF, Tab 10 at 4; PFR File, Tab 1 at 4. She has therefore
not shown that she was entitled to LWOP or any other form of leave for her
absences on these dates. See Patterson, 74 M.S.P.R. at 652. We therefore sustain
the first 93 specifications under the agency’s charge of AWOL and sustain the
charge of AWOL.
We need not decide whether the agency proved specifications 94 through 112 of
AWOL or its charge of failure to follow leave-requesting procedures.
Specifications 94 through 112 of the agency’s AWOL charge pertain to the
appellant’s absences between October 19, 2017, and November 15, 2017. IAF,
Tab 4 at 40-42. All of the specifications under the charge of failure to follow
leave-requesting procedures pertain to the appellant’s absences between
9
November 16, 2017, and January 5, 2018. Id. at 42-46. The appellant argued that
she was “medically incapacitated from October 19, 2017 to January 14, 2018.”
IAF, Tab 10 at 4.
As indicated above, under certain circumstances an agency may be
required to grant an employee LWOP or other leave for her absences, rather than
charge her with AWOL, when she is medically incapacitated.
See Patterson, 74 M.S.P.R. at 652. Similarly, when an employee is unable to
follow leave-requesting procedures because of restrictions arising from an illness
or injury, an agency may not discipline her for the failure to follow leave-
requesting procedures. Cf. Allen v. Department of the Army, 76 M.S.P.R. 564,
569 (1997) (finding that an agency may not charge an appellant with
insubordination for refusing an order when the record shows that the appellant
was unable to carry out the order due to restrictions arising from illness or
injury). Medical documentation demonstrating incapacitation may be deemed
administratively sufficient to require the granting of leave when it provides
details regarding the employee’s diagnosis, prognosis, dates of incapacitation,
restrictions from duty, and expected return to duty. See New-Howard v.
Department of Veterans Affairs, 590 F. App’x 972, 974 (Fed. Cir. 2014); 8 Young
v. U.S. Postal Service, 79 M.S.P.R. 25, 32-35 (1998).
Here, most significantly, the appellant’s evidence of medical incapacitation
includes a letter from an advanced practice registered nurse, dated January 24,
2018, and an FMLA certification form dated May 17, 2018, signed by a
physician. IAF, Tab 10 at 77-78, 87-90. Although these documents do not
present a precise diagnosis, they indicate that the appellant was ill between
approximately October 19, 2017, and January 14, 2018, was hospitalized from
November 6 to November 9, 2017, and suffered from, inter alia, the following
symptoms: confusion, anxiety, dizziness, memory loss, and hallucinations. Id.8
The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when it finds its reasoning persuasive. Morris v. Department of the
Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).
10
at 77-78, 88. The nurse’s letter stated that the appellant “was in absolutely no
condition to work, communicate with anyone or even function in society for that
matter,” id. at 78, while the physician indicated that the appellant was medically
incapacitated beginning on October 19, 2017, id. at 88.
The appellant’s medical evidence seems to meet some, though not all, of
the requirements to be deemed administratively sufficient such as to require the
granting of leave. See New-Howard, 590 F. App’x at 974; Young, 79 M.S.P.R.
at 32-35. We need not resolve this issue, and whether the agency proved the
remaining specifications of AWOL and the charge of failure to follow
leave-requesting procedures, because, as discussed below, we find that the
appellant’s removal is within the bounds of reasonableness based on the sustained
93 specifications of the AWOL charge. See Alaniz v. U.S. Postal Service,
100 M.S.P.R. 105, ¶ 10 (2005) (finding that the Board need not reach the merits
of some charges and specifications when other proven charges and specifications
are sufficient to warrant the appellant’s removal).
The appellant failed to establish her affirmative defense of disability
discrimination.
Before the administrative judge, the appellant raised affirmative defenses
of disability discrimination, reprisal for filing a prior Board appeal, and reprisal
for whistleblowing. I-2 AF, Tab 15 at 2. On review, the appellant alleges that
the agency discriminated against her because of her disability and asserts that
after the agency cancelled the first removal she was ordered back to work without
a reasonable accommodation. PFR File, Tab 2 at 4-5. She does not otherwise
challenge the administrative judge’s conclusion that she failed to establish her
affirmative defenses. Id.It is unlawful for an agency to “discriminate against a qualified individual
on the basis of disability.” 42 U.S.C. § 12112(a). A qualified individual is a
person who “satisfies the requisite skill, experience, education and other
job-related requirements of the employment position the individual holds or
11
desires and, with or without reasonable accommodation, can perform the essential
functions of such position.” Clemens v. Department of the Army, 120 M.S.P.R.
616, ¶ 10 (2014) (citing 29 C.F.R. § 1630.2(m)).
A disability is defined, in pertinent part, as “a physical or
mental impairment that substantially limits one or more major life activities.”
McNab v. Department of the Army, 121 M.S.P.R. 661, ¶ 7 (2014) (quoting 42
U.S.C. § 12102(1)). Having a record of such an impairment, or being regarded as
having such an impairment, is also included within the definition of a disability.
42 U.S.C. § 12102(1). Major depressive disorder should easily be found to
substantially limit a major life activity, and therefore be found to constitute a
disability. See McNab, 121 M.S.P.R. 661, ¶¶ 7-8; 29 C.F.R. § 1630.2(j)(3)(iii).
Here, the administrative judge found that the appellant failed to prove that
she has a disability. ID at 11-12. On review, the appellant asserts that proof of
her mental health disability is included in her prior Board appeal. PFR File,
Tab 2 at 4. The record in the appellant’s prior appeal indeed includes, inter alia,
a letter from her psychologist dated May 17, 2017, noting that she was currently
diagnosed with major depressive disorder and personality disorder. 9 0373 IAF,
Tab 8 at 7. Based on the appellant’s diagnosis of major depressive disorder, we
find that she established that she has a disability. See McNab, 121 M.S.P.R. 661,
¶¶ 7-8; 29 C.F.R. § 1630.2(j)(3)(iii).
The administrative judge in this appeal found that “[t]he appellant
presented no direct evidence of discriminatory animus, nor evidence of similarly
situated non-disabled employees who were treated more favorably, that the
agency lied about its reason for taking the removal action, that the agency’s
9
If the appellant wanted the administrative judge in the instant appeal to consider this
document, she should have submitted it into the record of this appeal, or at least
informed him about the existence of this document from her prior appeal that she
wished for him to consider. We nevertheless exercise our discretion to consider it. See
Lopes v. Department of the Navy, 119 M.S.P.R. 106, ¶ 9 (2012) (finding that the Board
and its administrative judges routinely incorporate the record from one matter filed by
an appellant into the record in a second matter filed by the same appellant).
12
explanation was inconsistent, that the agency failed to follow its established
procedures, that the agency generally treats disabled employees less favorably, or
of any incriminating statements.” ID at 13. He therefore concluded that she
failed to establish that any disability she had was a motivating factor in her
removal. Id. On review, the appellant does not challenge these findings, PFR
File, Tab 2. Because we affirm the administrative judge’s finding that the
appellant failed to show that any prohibited consideration was a motivating factor
in the agency’s action, we need not resolve the issue of whether the appellant
proved that discrimination or retaliation was a “but -for” cause of the agency’s
decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.
The law also requires an agency to provide reasonable accommodation to
a qualified individual with an actual disability or a record of a disability.
Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 34 (2014). In order to
establish a disability-based failure to accommodate claim, an appellant
must show that: (1) she is an individual with a disability, as defined by
29 C.F.R. § 1630.2(g)(1)(i)-(ii); (2) she is a qualified individual with a disability,
as defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a
reasonable accommodation. Miller v. Department of the Army, 121 M.S.P.R. 189,
¶ 13 (2014); 29 C.F.R. § 1630.2(o)(4).
Nevertheless, an agency is not required to provide an accommodation that
would cause an undue hardship on its business operations. Miller, 121 M.S.P.R.
189, ¶ 13 (citing 29 C.F.R. § 1630.9(a)). Additionally, an appellant cannot
establish her claim without showing that she actually requested an
accommodation that would have allowed her to meet the requirements of her
position. Henson v. U.S. Postal Service, 110 M.S.P.R. 624, ¶ 7 (2009).
Moreover, an agency’s obligation to provide a reasonable accommodation arises
only after an employee has established her status as a qualified employee with a
disability, at which point the agency is entitled to a reasonable period of time in
which to conduct its assessments and arrive at a conclusion regarding the request
13
for accommodation. See McConnell v. Department of the Army, 61 M.S.P.R. 163,
169-70 (1994).
On review, the appellant does not specify what reasonable accommodation
the agency failed to provide her with, but simply alleges that the agency ordered
her back to work without a reasonable accommodation. 10 PFR File, Tab 2 at 5.
As previously noted, after cancelling the prior removal, the agency returned the
appellant to her position effective October 10, 2017. 0373 IAF, Tab 11 at 6. By
letter dated November 2, 2017, the agency informed the appellant that it agreed to
provide her with noise-cancelling headphones and the ability to use a flexible
work schedule and personal leave, including LWOP, to attend therapy sessions.
I-2 AF, Tab 8 at 10. The letter indicated that these were the specific
accommodations the appellant requested during a meeting on October 18, 2017.
Id. On January 19, 2018, the appellant confirmed that she was not requesting any
additional accommodations. Id. at 14.
To the extent that the appellant argues that the agency failed to reasonably
accommodate her by not granting her these accommodations sooner, we find that
she has failed to show that the agency unreasonably delayed in evaluating and
ultimately granting her request for accommodations. See McConnell, 61 M.S.P.R.
at 167-70. Accordingly, we find that the appellant failed to establish her
affirmative defense that the agency failed to reasonably accommodate her.
The agency established nexus and the reasonableness of the penalty.
As the administrative judge found, it is well settled that unauthorized
absence from duty is inherently connected to the efficiency of the service. ID
at 15; Davis v. Veterans Administration, 792 F.2d 1111, 1112-13 (Fed. Cir. 1986).
10
Below, the appellant noted that she was requesting a reasonable accommodation prior
to her first removal. I-2 AF, Tab 3 at 4. Because the appellant does not argue on
review that the agency improperly denied her a reasonable accommodation prior to her
first removal, as she argued in her prior appeal, we decline to consider that issue.
See Roche v. Department of Transportation, 110 M.S.P.R. 286, ¶ 13 (2008) (finding that
the Board generally does not consider issues that are not raised on review), aff’d, 596
F.3d 1375 (Fed. Cir. 2010).
14
We therefore find that the agency established a nexus between its charge of
AWOL and the efficiency of the service.
When the Board does not sustain all of the agency’s charges, it will
carefully consider whether the sustained charges merit the agency’s imposed
penalty. Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 17
(2014). In such a case, the Board may mitigate the agency’s penalty to the
maximum reasonable penalty so long as the agency has not indicated in either its
final decision or in proceedings before the Board that it desires that a lesser
penalty be imposed on fewer charges. Lachance v. Devall, 178 F.3d 1246, 1260
(Fed. Cir. 1999); Boo, 122 M.S.P.R. 100, ¶ 17. Here, the deciding official has not
given such an indication, and has instead only indicated that the penalty of
removal would be reasonable for the two charges even if there had been fewer
specifications under each charge. IAF, Tab 4 at 11. Accordingly, the Board must
apply the relevant Douglas factors to determine the maximum reasonable penalty
for the appellant’s sustained misconduct. 11 See Boo, 122 M.S.P.R. 100, ¶ 17.
The most important of the Douglas factors is the nature and seriousness of
the offense. Id., ¶ 18. Among the considerations included in this factor is the
relationship of the offense to the employee’s duties, position, and responsibilities,
including whether the offense was intentional or was frequently repeated. Id.The appellant’s supervisor indicated, in the proposal notice, that the
appellant’s AWOL required the agency to redistribute her work to other
employees and that her excessive absences resulted in her not completing
required training. IAF, Tab 4 at 46. In addition to adopting the Douglas factors
analysis set forth in the proposal notice, the deciding official emphasized that—in
conjunction with the fact that the appellant was a new employee to the agency—
the appellant’s absences made her unable to receive the systems access required
to perform her duties. Id. at 12. It is apparent that the appellant’s AWOL, which
11
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of 12 factors, both aggravating and mitigating, that are
relevant to the penalty determination in adverse action cases.
15
was continuous over an approximately 4-month period, prevented her from
performing in her position. Accordingly, we find that the appellant’s AWOL was
a serious offense. See Bowman v. Small Business Administration,
122 M.S.P.R. 217, ¶ 12 (2015) (noting that the Board has recognized that being
AWOL is a serious offense that warrants a severe penalty).
Notably, the appellant was advised in a letter sent on February 23, 2017,
that her continued absences would be documented as AWOL and could be used as
a basis to take disciplinary action, up to and including removal. IAF, Tab 4 at 99.
In an email to the appellant, an agency official stated that evidence revealed that
the appellant received this letter on February 24, 2017. IAF, Tab 4 at 95.
Eighty-eight of the sustained incidents of AWOL occurred thereafter. Id.
at 30-40. The appellant’s continued AWOL after receiving a letter warning her
about such misconduct is an aggravating factor. See Tyler v. Department of the
Army, 38 M.S.P.R. 85, 88-89 (1988) (finding that the appellant’s prior counseling
sessions and warnings for engaging in specific misconduct could properly have
been used as a basis for imposing an enhanced penalty for similar future
misconduct).
The agency’s table of penalties provides that removal may be appropriate
for a first offense of AWOL if the absence is prolonged. IAF, Tab 4 at 102. We
find that the appellant’s 4-month absence was a prolonged absence, and that
the imposed penalty was therefore consistent with the table of penalties. See
Dunn v. Department of the Air Force, 96 M.S.P.R. 166, ¶ 18 (2004) (sustaining
an agency’s penalty determination when, among other things, it was consistent
with the agency’s table of penalties), aff’d, 139 F. App’x 280 (Fed. Cir. 2005).
The appellant’s past work record was considered to be an aggravating
factor, apparently in part because she should have been very knowledgeable about
working for the Federal government after approximately 11 years of Federal
service. IAF, Tab 4 at 47. To the extent that the deciding official adopted this
contention and thereby considered the appellant’s 11 years of Federal service as
16
an aggravating factor, we note that longer terms of Federal service are properly
considered as more mitigating than shorter terms. See Wentz v. U.S. Postal
Service, 91 M.S.P.R. 176, ¶ 19 (2002). Accordingly, we consider the appellant’s
11 years of Federal service as a mitigating factor. See id.Evidence that an employee’s medical condition or mental impairment
played a part in the charged conduct is ordinarily entitled to considerable weight
as a mitigating factor. Thom v. Department of the Army, 114 M.S.P.R. 169, ¶ 7
n.5 (2010). Additionally, the Board has found that an appellant’s seeking
treatment for her medical problems indicates a potential for rehabilitation.
Vitanza v. U.S. Postal Service, 89 M.S.P.R. 319, ¶ 6 (2001). Here, the appellant’s
psychologist stated in a letter dated May 17, 2017, that she had been treating the
appellant’s depression and personality disorder since February 17, 2017, and she
indicated that the appellant’s symptoms had been worsening. 0373 IAF, Tab 8
at 7. Although the appellant has not argued during the course of this appeal that
her medical condition played a part in her AWOL between February 17, 2017,
and June 29, 2017, we nevertheless consider her medical conditions—and her
decision to seek treatment for them—to be mitigating factors deserving of
considerable weight. See Thom, 114 M.S.P.R. 169, ¶ 7; Vitanza, 89
M.S.P.R. 319, ¶ 6.
Despite such considerable mitigating factors, we recognize that “[a]n
essential element of employment is to be on the job when one is expected to be
there.” Davis, 792 F.2d at 1113. The Board has found removal to be a
reasonable penalty for significantly shorter periods of AWOL than the
approximately 4-month period of AWOL at issue here. See, e.g., Thom,
114 M.S.P.R. 169, ¶¶ 2, 7 (upholding the appellant’s removal for 1 month of
AWOL, despite considering his medical conditions as a mitigating factor); Jones
v. U.S. Postal Service, 110 M.S.P.R. 674, ¶¶ 2, 8 (2009) (upholding the
appellant’s removal for 11 instances of unscheduled absences over a 3-month
period when the appellant had been warned that such conduct would result in
17
discipline); Maddux v. Department of the Air Force , 68 M.S.P.R. 644, 645-46
(1995) (upholding the appellant’s removal for 21 consecutive calendar days of
AWOL, despite 20 years of Federal service); Young v. U.S. Postal Service,
14 M.S.P.R. 549, 551 (1983) (upholding the appellant’s removal for 40.75 hours
of AWOL over an approximately 6-week period, despite 17 years of Federal
service and satisfactory performance, when he was placed on AWOL after
exhausting all his leave and his absences resulted in increased costs to the agency
for the payment of overtime to other employees and employee shortages in other
departments). Under the circumstances of this case, even considering such
mitigating factors as the appellant’s 11 years of Federal service and her medical
conditions, we find that it is within the bounds of reasonableness to remove her
based on the sustained 93 days of AWOL. We therefore affirm the appellant’s
removal.
NOTICE OF APPEAL RIGHTS 12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
12
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter.
18
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
19
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
20
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
21
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.