Opinion

Portia Harris v. Department of Defense

Court: Merit Systems Protection Board
Filed: Jun 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 29.3%

observing that the employee’s “common sense should have forewarned him” of the possibility of discipline for his actions even though they were not specifically prohibited

How later courts described this case

observing that the employee’s “common sense should have forewarned him” of the possibility of discipline for his actions even though they were not specifically prohibited
finding that there is sufficient nexus between an employee’s conduct and the efficiency of the service when the conduct occurred in part at work

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PORTIA HARRIS, DOCKET NUMBER

Appellant, CH-0752-20-0349-I-1

DEPARTMENT OF DEFENSE, DATE: June 26, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carlina Wilkes , Indianapolis, Indiana, for the appellant.

Mickey J. Lee , Indianapolis, Indiana, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

The agency has filed a petition for review of the initial decision, which

sustained the agency’s charges and mitigated the appellant’s removal to a 60-day

suspension. For the reasons discussed below, we GRANT the agency’s petition

for review, AFFIRM the initial decision insofar as it found that the agency proved

its charges and established nexus, and REVERSE the initial decision insofar as it

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

mitigated the penalty of removal to a 60-day suspension, reinstating the

appellant’s removal.

BACKGROUND

The appellant was employed as a GS-11 Accountant with the Defense

Finance Accounting Service in Indianapolis, Indiana. Initial Appeal File (IAF),

Tab 7 at 22. The agency proposed the appellant’s suspension for 3 days based on

three charges: absence without leave (AWOL) for 1 hour on November 8, 2019,

failure to request leave in accordance with established procedures on

November 8, 2019, and delay in carrying out supervisory instructions (five

specifications). Id. at 203-08. With her December 19, 2019 response to the

proposed suspension, the appellant’s union representative argued that the

proposed penalty was excessive and submitted an Indianapolis Metropolitan

Police Department (IMPD) case report showing that the appellant had been the

victim of a carjacking on the evening of November 7, 2019. Id. at 78-84.

Agency Personnel Security employees reviewed public records and discovered

that no calls to either the IMPD or the local county sheriff’s office matched the

description on the case report included with the appellant’s submission. IAF,

Tab 7 at 67, 70-73, 82-84, Tab 22 at 6. Further, the case report number the

appellant provided matched a drug/narcotic violation as opposed to a carjacking.

IAF, Tab 7 at 70, 82, Tab 22 at 6.

The proposing official for the suspension informed the appellant and her

representative on December 20, 2019, that the police report she submitted was

inconsistent with public records and permitted her 10 workdays to respond. IAF,

Tab 7 at 67. Neither the appellant nor her representative responded. Id. at 63.

The agency then rescinded the proposed suspension and instead proposed

the appellant’s removal based on the same charges as in the proposed suspension

with the additional charge of conduct unbecoming a Federal employee. Id.

at 55-62, 203-08. Regarding the conduct unbecoming charge, the notice of

proposed removal explained the basis of the charge as being that, in response to

the proposed suspension, the appellant submitted a police report alleging that she

was the victim of a carjacking on November 7, 2019, but the report was “not the

actual public report that the appellant portrayed it to be.” Id. at 56. After the

appellant replied orally and in writing, the deciding official sustained the charges,

and the agency removed the appellant effective March 12, 2020. Id. at 23-54.

The deciding official considered the appellant’s various explanations before

ultimately concluding that “there is no police report available that matches the

incident as you originally described it, with a case report number that matches

public records.” Id. at 25-26.

The appellant filed a Board appeal alleging that the agency removed her

based on false evidence. IAF, Tab 1 at 6. She did not request a hearing. Id. at 2.

After affording the parties the opportunity to submit evidence and argument, 2 the

administrative judge issued an initial decision based on the written record,

finding that the agency proved its charges by preponderant evidence and that the

agency’s action was taken for such cause as promotes the efficiency of the

service. IAF, Tab 27, Initial Decision (ID) at 6-13. However, the administrative

judge found that the agency failed to prove that removal was within the bounds of

reasonableness and mitigated the penalty to a 60-day suspension. ID at 15-19.

She ordered the agency to provide interim relief to the appellant if a petition for

review was filed by either party. ID at 20.

The agency has filed a petition for review of the initial decision

challenging the administrative judge’s decision to mitigate the penalty to a 60 -day

suspension. Petition for Review (PFR) File, Tab 1 at 13-23. With its petition for

review, the agency certifies its compliance with the administrative judge’s interim

relief order and submits a Standard Form (SF) 50 showing that it appointed the

appellant, on an interim basis, to her GS-11 position. Id. at 24, 26. The appellant

The parties reached extensive stipulations regarding the facts underlying the agency’s

charges. IAF, Tab 22.

has responded to the petition for review and asserts that the facts stated by the

agency are not valid. 3 PFR File, Tab 3 at 7. The appellant does not contest the

agency’s compliance with the administrative judge’s interim relief order. 4 PFR

File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency proved its charges and nexus.

Relying extensively on the parties’ stipulations when appropriate and on

detailed factual findings when necessary, the administrative judge sustained the

specifications and charges brought by the agency. ID at 7-12; IAF, Tab 22. The

appellant does not identify any specific error in the administrative judge’s

findings, and we discern no reason to disturb them. PFR File, Tab 3 at 7; see

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (stating that the Board

The appellant’s response to the petition for review consists of one sentence and does

not point to a specific agency document or factual finding by the administrative judge

that she believes was erroneous. PFR File, Tab 3 at 7. She states that she wants to

produce additional facts which were not made available below, but does not set forth

the facts or provide documentary evidence, state what facts she wishes to provide,

articulate how they would be relevant to her appeal, or explain why she was unable to

provide them below. Id. To the extent that the appellant intended her submission as a

cross petition for review, challenging the administrative judge’s decision on the

charges, if we were to consider it as a cross petition for review, we would deny it

because the pleading contains no specifics. Tines v. Department of the Air Force,

56 M.S.P.R. 90, 92 (1992) (stating that a petition for review must contain sufficient

specificity to enable the Board to ascertain whether there is a serious evidentiary

challenge justifying a complete review of the record).

In addition to an SF-50 documenting the appellant’s interim appointment, the agency

states that the appellant was placed on administrative leave for “three days[,] effective

September 22, 2020,” and that she was placed in such status because it believed that her

presence in the workplace would be unduly disruptive. PFR File, Tab 1 at 24, 26.

Although this evidence is unclear as to whether the appellant was returned to duty or

placed on administrative leave pursuant to an undue disruption determination,

resolution of this question is not necessary as both statuses constitute compliance with

the interim relief order. 5 C.F.R. § 1201.116(a); see 5 U.S.C. § 7701(b)(2). The

appellant does not challenge the agency’s compliance with the interim relief order.

PFR File, Tab 3. Thus, we need not discuss the matter further. Batara v. Department

of the Navy, 123 M.S.P.R. 278, ¶ 8 n.1 (2016) (finding that the Board need not discuss

the provision of interim relief further when the agency certifies its compliance and the

appellant does not contest the provision of interim relief).

will not disturb an administrative judge’s findings when she considered the

evidence as a whole, drew appropriate inferences, and made reasoned

conclusions); Broughton v. Department of Health and Human Services ,

33 M.S.P.R. 357, 359 (1987) (same); see also Tines, 56 M.S.P.R. at 92 (stating

that a petition for review must contain sufficient specificity to enable the Board

to ascertain whether there is a serious evidentiary challenge justifying a complete

review of the record). The administrative judge also found a nexus between the

sustained charges and the efficiency of the service, and the appellant does not

contest that finding on review. ID at 13; PFR File, Tab 3 at 7. We discern no

reason to disturb the administrative judge’s finding regarding nexus. Parker v.

U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987) (finding that there is

sufficient nexus between an employee’s conduct and the efficiency of the service

when the conduct occurred in part at work).

Thus, the only issue that remains on review is whether the penalty of

removal was reasonable. As discussed below, we find that the penalty of removal

was reasonable and that the administrative judge erred in mitigating the removal

to a 60-day suspension.

The administrative judge erred in mitigating the agency’s penalty selection.

When, as here, all of the agency’s charges have been sustained, the Board

will review an agency-imposed penalty only to determine if the agency

considered all of the relevant factors and exercised management discretion within

the tolerable limits of reasonableness. Powell v. U.S. Postal Service,

122 M.S.P.R. 60, ¶ 12 (2014); Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R.

272, ¶ 20 (2001). In doing so, the Board must give due weight to the agency’s

primary discretion in maintaining employee discipline and efficiency, recognizing

that the Board’s function is not to displace management’s responsibility, but to

ensure that managerial judgment has been properly exercised. Powell,

122 M.S.P.R. 60, ¶ 12; Stuhlmacher, 89 M.S.P.R. 272, ¶ 20. Thus, the Board will

modify an agency-imposed penalty only when the Board finds that the penalty

clearly exceeded the bounds of reasonableness or the agency failed to weigh the

relevant factors. Powell, 122 M.S.P.R. 60, ¶ 12; Stuhlmacher, 89 M.S.P.R. 272,

¶ 20. If the agency’s penalty is beyond the bounds of reasonableness, the Board

will mitigate it only to the extent necessary to bring it within the parameters of

reasonableness. Chavez v. Small Business Administration, 121 M.S.P.R. 168, ¶ 8

(2014); Stuhlmacher, 89 M.S.P.R. 272, ¶ 20. However, if the agency deciding

official failed to appropriately consider the relevant Douglas factors, 5 the Board

need not defer to the agency’s penalty determination. Davis v. U.S. Postal

Service, 120 M.S.P.R. 457, ¶ 6 (2013); Stuhlmacher, 89 M.S.P.R. 272, ¶ 20.

Here, the administrative judge found that the agency failed to properly

weigh the relevant Douglas factors, reweighed them herself, and concluded that a

60-day suspension was the maximum reasonable penalty. ID at 16-19. The

agency argues on review that it correctly applied the Douglas factors and that the

administrative judge made erroneous findings of fact regarding the deciding

official’s penalty determination and that she improperly substituted her judgment

for that of the agency. PFR File, Tab 1 at 14-22. After reviewing the record, we

agree with the agency and find that the administrative judge erred by mitigating

the penalty to a 60-day suspension.

As noted above, the agency initially proposed to suspend the appellant for

3 days based on the charges of absence without leave (AWOL) for 1 hour, failure

to request leave in accordance with established procedures, and delay in carrying

out supervisory instructions (five specifications). IAF, Tab 7 at 203-08. After

the appellant replied to that proposal, the agency rescinded the proposal, added

the additional charge of conduct unbecoming a Federal employee to the original

charges, and ultimately removed the appellant. Id. at 25-31, 55-62. Thus, it is

clear that the agency considered the conduct unbecoming charge as far more

serious than the initial charges and that the additional charge justified the

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board set

forth a nonexhaustive list of factors that are relevant in determining the appropriateness

of the penalty for an act of misconduct.

increased penalty of removal. Therefore, we must decide whether the conduct

unbecoming charge, largely by itself, supports the appellant’s removal, and as the

administrative judge did, we focus our analysis on that charge.

Contrary to the administrative judge’s finding, the deciding official

correctly applied the table of penalties.

In reviewing the agency’s penalty selection, the administrative judge first

observed that the deciding official incorrectly applied the table of penalties to the

conduct unbecoming charge. ID at 17. The administrative judge explained that

the deciding official cited to a provision of the agency’s table of penalties which

provides for the penalty of removal for a first offense of “falsification or

misrepresentation of an employment application, appointment affidavit or

security background” and also cited to a provision that provides for removal for a

first offense of “knowingly providing false testimony in connection with an

official investigation, proceeding, or inquiry,” and that “[t]he record clearly

shows” that the appellant did not offer the carjacking explanation in regards to an

employment application or one of the other activities set forth in the table of

penalties. Id.; IAF, Tab 7 at 27, 336. The administrative judge further explained

that the agency did not charge the appellant with making false statements or

submitting false documents. ID at 17. On review, the agency argues that the

deciding official did not misapply the agency’s table of penalties. PFR File,

Tab 1 at 15-16.

The deciding official stated in the decision notice that the table of penalties

“serves as a guide in determining penalties,” a statement fully supported by the

language in the table of penalties, which states that it “provides penalty

guidelines for [agency] supervisors when a disciplinary action is taken against an

employee,” and that the “actual penalty determination is within the discretion of

the supervisor, depending on the facts and circumstances of each situation.” IAF,

Tab 7 at 27, 331. The deciding official also specifically stated in his Douglas

Factor Worksheet that the table of penalties did not include conduct unbecoming

and therefore he analogized to “comparator charges that most closely resemble

the charge of conduct unbecoming a Federal employee” in the appellant’s case.

IAF, Tab 7 at 33. In his decision letter, the deciding official described the two

charges listed on the table of penalties that he referenced as “most closely

relate[d] to [the appellant’s] specified conduct under the charge of conduct

unbecoming a Federal employee.” Id. at 27.

When an agency describes the table of penalties as a “guide,” it is not

mandatory. Taylor v. Department of Veterans Affairs, 112 M.S.P.R. 423, ¶ 10

(2009); see Farrell v. Department of the Interior, 314 F.3d 584, 590-593 (Fed.

Cir. 2002). In addition, when an employee’s specific misconduct is not

delineated in an agency’s table of penalties, it is within the deciding official’s

discretion to apply the listed misconduct that most nearly resembles the

circumstances in the appellant’s case. Phillips v. Department of the Interior,

95 M.S.P.R. 21, ¶ 17 (2003), aff’d, 131 F. App’x 709 (Fed. Cir. 2005); see

Farrell, 314 F.3d at 592-93.

Here, we find that the table of penalties was only a guide and thus the

deciding official was free to deviate from it. In addition, because the table of

penalties did not include the specific offense of conduct unbecoming, the

deciding official properly analogized it to delineated misconduct that closely

resembled the appellant’s misconduct. The agency charged the appellant with

conduct unbecoming a Federal employee for submitting, as part of her reply to

the proposed suspension, a police report showing that she was the victim of a

carjacking, which did not comport with the public records. IAF, Tab 7 at 25, 56.

Thus, the gravamen of the agency’s charge was essentially that the appellant

provided incorrect information to the deciding official in response to the notice of

proposed suspension. We discern no error in the deciding official relying on the

comparable offenses as he did. 6

The administrative judge observed that the appellant presented evidence that her car

was stolen and was in an accident on the day of the purported carjacking, which,

according to the administrative judge, the agency did not dispute. ID at 18. Contrary to

The administrative judge erred by finding that the agency’s failure to show

that other employees have been removed for similar misconduct supports

mitigation of the penalty.

In her initial decision, the administrative judge found that the agency did

not provide evidence that other employees were removed for offenses similar to

those committed by the appellant. ID at 18. The agency argues on review that

the absence of evidence of comparator employees cannot be a basis to find that

the penalty is not reasonable. PFR File, Tab 1 at 19-20.

The consistency of the penalty with those imposed upon other employees

for the same or similar offenses is simply one of a nonexhaustive list of 12 factors

that are relevant for consideration in determining the appropriateness of a

penalty. Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 18. Because not every

Douglas factor is relevant in every adverse action, Chatman v. Department of the

Army, 73 M.S.P.R. 582, 586 (1997), before the consistency of the penalty is at

issue in an appeal, the appellant must first identify a comparator employee who

was treated differently, McNab v. Department of the Army, 121 M.S.P.R. 661,

¶ 11 (2014). In Batara, 123 M.S.P.R. 278, ¶ 14, the Board addressed a situation

in which neither party identified a valid comparator employee and there was no

evidence as to the consistency of the penalty, and it found that the lack of such

evidence was not a basis to conclude that the penalty of removal exceeded the

bounds of reasonableness.

In this appeal, the appellant did not raise the issue of the consistency of the

penalty levied against similarly situated employees below or on review and has

not identified a comparator employee. Thus, it was error for the administrative

judge to rely on the agency’s failure to provide evidence of comparator

the administrative judge’s finding, the agency noted various inconsistencies with the

appellant’s claims about the accident and vehicle theft, including the time and location

of the purported accident and theft. IAF, Tab 7 at 26, Tab 25 at 30-34. Regardless,

even if the appellant’s vehicle was stolen and was in an accident, the fact remains that

the appellant, over a significant period of time, continued to stand behind the police

report purportedly showing that she was the victim of a carjacking, which was

inconsistent with the public records.

employees to support her decision to mitigate the penalty. The absence of

evidence of comparator employees does not cause us to find that the agency’s

penalty determination was not entitled to deference or that the penalty of removal

was unreasonable. 7

The administrative judge erred by finding that the agency’s failure to

specifically inform the appellant that she could be disciplined for her

misconduct supports mitigation of the penalty.

In support of her decision to mitigate the penalty, the administrative judge

observed that the appellant was not on notice that her assertions and submissions

while replying to the proposed suspension would be the basis for discipline. ID

at 18. The agency asserts on review that the administrative judge’s finding is

belied by the evidence. PFR File, Tab 1 at 21.

The appellant was provided with an opportunity to provide an explanation

as to why the police report she submitted was inconsistent with public records,

and she did not do so. IAF, Tab 7 at 56, 63. The notice of proposed removal also

specifically informed her that the agency was relying on her submission of a

police report that was not the actual public record she portrayed it to be. Id.

at 56. Thus, the agency provided the appellant advanced notice that it considered

her actions to constitute misconduct.

Further, an agency may reasonably require Federal employees to exercise

good judgment, notwithstanding a lack of literal guidance from an agency rule,

regulation, or other statement of agency policy. See Boyer v. Department of the

Navy, No. 94-3032 *2 (Fed. Cir. May 26, 1995). 8 An agency therefore is not

As the agency notes in its petition for review, the fact that the appellant engaged in

misconduct that was novel is not a basis to restrict the agency’s ability to discipline her.

PFR File, Tab 1 at 20. Our reviewing court has held that the fact that there may be no

direct precedent for the action taken in a particular case does not, however, prohibit the

agency from taking an adverse action if it is consistent with general principles of

Federal employment law. Brown v. Department of the Navy, 229 F.3d 1356, 1363 (Fed.

Cir. 2000).

The Board may rely on nonprecedential decisions of the U.S. Court of Appeals for the

Federal Circuit if it finds the court’s reasoning persuasive, as we do here. Graves v.

required to specifically prohibit every type of possible misconduct. See Brown v.

Department of Transportation, 735 F.2d 543, 548 (Fed. Cir. 1984) (observing that

the employee’s “common sense should have forewarned him” of the possibility of

discipline for his actions even though they were not specifically prohibited).

The lack of a specific rule that submission of a police report that does not

comport with public records during a formal agency process can result in

discipline is not a mitigating factor under the circumstances of this case. The

appellant knew or should have known that it was improper to provide such a

police report. Even if the agency did not provide an express warning to the

appellant regarding the adverse consequences of the actions described in the

charge of conduct unbecoming, common sense should have forewarned her.

Brown, 229 F.3d at 1363. Thus, we find that the administrative judge erred in

considering the lack of specific notice as a mitigating factor.

The administrative judge erred in finding that the appellant showed

rehabilitative potential.

In her initial decision, the administrative judge found that the appellant

took responsibility for some of the charges and specifications against her and thus

showed that she had a potential for rehabilitation. ID at 18. In its petition for

review, the agency disagrees with the administrative judge’s finding and argues

that the deciding official was in the most appropriate position to determine the

appellant’s rehabilitative potential and that he correctly concluded that the

appellant did not have such potential based on her extended pattern of providing

false and/or inconsistent information. PFR File, Tab 1 at 17-18.

The Board may abandon its deference to an agency’s penalty determination

if the deciding official misjudged the appellant’s rehabilitative potential.

Von Muller v. Department of Energy, 101 M.S.P.R. 91, ¶ 21 (2005), aff’d, 204 F.

App’x 17 (Fed. Cir. 2006); see Wentz v. U.S. Postal Service, 91 M.S.P.R. 176,

¶ 24-25 (mitigating the agency-imposed penalty based, in part, on the Board’s

Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 10 n.1 (2016).

disagreement with the deciding official’s assessment of the employee’s potential

for rehabilitation). Here, the deciding official stated that he had lost faith and

confidence in the appellant’s trustworthiness as a Federal employee and her

willingness to take the necessary actions to correct her conduct. IAF, Tab 7

at 27. The deciding official further stated that he believed that the appellant did

not have rehabilitative potential because he could not rely on her to perform her

duties in a timely manner, to comply with agency rules governing time and

attendance, and to be honest and forthcoming. Id. The deciding official did not

misjudge the appellant’s rehabilitative potential.

An employee’s rationalizations and lack of remorse for proven misconduct

indicate that she has little rehabilitative potential. Neuman v. U.S. Postal Service,

108 M.S.P.R. 200, ¶ 26 (2008). Although, as the administrative judge noted, the

appellant admitted to some of the charges and specifications, the appellant did not

apologize or acknowledge any wrongdoing for the police report she provided that

was inconsistent with the public records. In fact, in her response to the proposed

removal, the appellant continued to deflect responsibility and appeared to be

avoiding responsibility for her actions. IAF, Tab 7 at 35-36. Thus, under the

circumstances, we find that the administrative judge erred in disturbing the

agency deciding official’s assessment of the appellant’s potential for

rehabilitation. 9

The agency argues that the administrative judge diminished the significance of the

appellant’s misconduct when she stated that the “disputed false documents and

explanations involved an off-duty carjacking and off-duty car accident” and cited Kelly

v. Department of Health and Human Services, 46 M.S.P.R. 358 (1990), a case in which

the Board mitigated a removal to a 90-day suspension when an appellant’s off -duty

misconduct did not affect the performance of her job functions. PFR File, Tab 1 at 16;

ID at 18. The agency notes, in particular, that it did not remove the appellant for

off-duty conduct but for providing an inaccurate document in response to her proposed

suspension. PFR File, Tab 1 at 19. To the extent the administrative judge considered

the appellant’s misconduct as involving off-duty misconduct, she erred. The agency did

not discipline the appellant for off-duty misconduct.

The agency deciding official properly weighed the Douglas factors, and the

penalty of removal is within the tolerable limits of reasonableness.

Having found that the administrative judge erred in her assessment of the

agency’s penalty determination, we now consider whether the penalty of removal

is within the tolerable limits of reasonableness. We consider, first and foremost,

the nature and seriousness of the appellant’s misconduct, its relation to her job

duties, and whether the misconduct was intentional or frequently repeated. Saiz

v. Department of the Navy, 122 M.S.P.R. 521, ¶ 11 (2015). We find that

providing an inaccurate document to the agency as part of an official process—a

response to a proposed suspension—is a serious offense that strikes at the very

core of the employee-employer relationship. See Jackson v. Department of the

Army, 99 M.S.P.R. 604, ¶ 6 (2005) (stating that lack of candor is a serious

offense); Wheeler v. Department of the Army, 47 M.S.P.R. 240, 246-47 (1991)

(finding that falsification is a very serious offense). Moreover, the appellant’s

misconduct was intentional and was conducted over a period of time, which adds

to its seriousness. See Honeyman v. Department of the Navy, 46 M.S.P.R. 136,

143 (1990) (noting the intentional and repeated nature of the appellant’s

misconduct supported a finding that removal was a reasonable penalty). In

addition, as discussed above, we understand the agency’s loss of trust and

confidence in the appellant, her lack of rehabilitative potential, and that, while the

appellant’s precise misconduct is not listed on the table of penalties, the

suggested discipline for similar acts of misconduct is removal.

Weighed against these factors, we note the appellant’s over 12 years of

Federal civilian service, her satisfactory past work record, and her lack of prior

discipline. All of these are mitigating factors. 10 See Jackson v. Veterans

Administration, 14 M.S.P.R. 61, 64 (1982) (finding that the employee’s length of

The agency deciding official noted that the appellant had recently sought assistance

through the Employee Assistance Program and that was a mitigating factor. IAF, Tab 7

at 27. While the circumstances surrounding the appellant seeking assistance are not in

the record, we have also considered it as a mitigating factor.

service and satisfactory employment record were mitigating factors). They are,

however, insufficient to outweigh the sustained misconduct of AWOL, failure to

request leave in accordance with establish procedures, delay in carrying out

supervisory instructions, and most importantly, the charge of conduct unbecoming

a Federal employee and its attendant circumstances.

Based on the foregoing, we find that the penalty of removal is within the

tolerable limits of reasonableness. We grant the agency’s petition for review,

affirm the initial decision insofar as it found that the agency proved its charges

and the existence of a nexus, and reverse the initial decision insofar as it

mitigated the penalty of removal to a 60-day suspension. The agency’s removal

action is affirmed.

NOTICE OF APPEAL RIGHTS 11

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

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

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.

(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:

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. 12 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).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

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