Opinion

Zie Kone v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jul 3, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.2%

establishing the general reprisal standard

How later courts described this case

establishing the general reprisal standard

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ZIE KONE, DOCKET NUMBER

Appellant, PH-0752-18-0348-I-1

DEPARTMENT OF THE NAVY, DATE: July 3, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brian Deinhart , Esquire, Albany, New York, for the appellant.

Richard Dale , Newport, Rhode Island, 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.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

sustained his 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

administrative judge’s rulings during either the course of the appeal or the initial

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 by

this Final Order to correct the legal standards for evaluating the charge and the

appellant’s affirmative defense of reprisal for his prior Board appeals, we

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

¶2 The appellant, a Scientist, previously filed two Board appeals concerning

adverse actions taken against him. Kone v. Department of the Navy, MSPB

Docket No. PH-0752-13-0217-I-3, Final Order (Feb. 27, 2015) (0217 Final

Order). The appeals were joined for processing and the Board issued a Final

Order reversing the agency’s suspension and reducing the removal to a 30-day

suspension. Id.; Kone v. Department of the Navy, MSPB Docket Nos.

PH-0752-13-0217-I-3, PH-0752-13-0413-I-2, Initial Decision at 1 (May 27,

2014). The administrative judge found, and the parties do not dispute, that the

individuals involved in the prior actions did not play a role in the removal at issue

in the instant appeal. Kone v. Department of the Navy, MSPB Docket No.

PH-0752-18-0348-I-1, Initial Appeal File (IAF), Tab 40, Initial Decision (ID)

at 9-10.

¶3 In April 2017, the appellant requested leave under the Family and Medical

Leave Act (FMLA), which the agency approved. IAF, Tab 4 at 12, Tab 28

at 53-55. The appellant exhausted his 480 hours of FMLA-protected leave in

July 2017. IAF, Tab 28 at 53-55. The appellant was then absent from work for

39 consecutive days, from January 9 through March 8, 2018. Id. at 26-27, 55.

On some of the days he was absent, the appellant texted his first-level supervisor

to let him know he would not be in the office that day for various reasons. IAF,

Tab 14 at 16-29, Tab 15 at 4-17. For example, from early- to mid-January 2018,

the appellant stated he was “not well” or “ill.” IAF, Tab 14 at 16-20. Beginning

on January 17, 2018, he indicated he was seeking treatment at a clinic, and later a

hospital. Id. at 21, 25, 27. Ultimately, in early February 2018, he referred to

being scheduled for, and having, unidentified “procedures.” IAF, Tab 15 at 4-8.

Later that month through April 2018, he indicated he was suffering from a

“relapse” or relapses. Id. at 6-8, 12. On at least six different occasions, the

appellant’s supervisor texted back that the appellant was absent without leave

(AWOL). IAF, Tab 14 at 18-19, 22, Tab 15 at 6, 9, 11, 13, 16.

¶4 On February 1, 2018, the agency issued a letter to the appellant that

informed him that he had been absent since January 9, 2018, he was being

designated as AWOL, and if he did not return to work by February 9, 2018, his

removal would be proposed. IAF, Tab 4 at 28. The appellant did not respond to

the February 1, 2018 letter and did not return to work. IAF, Tab 28 at 27, 55. On

March 18, 2018, the appellant’s second-level supervisor proposed his removal

based on 39 specifications of AWOL, which concerned the appellant’s absence on

January 2, 2018, and from January 9 through March 8, 2018. IAF, Tab 4

at 22-27. After the appellant failed to reply, the agency removed him, effective

May 7, 2018. Id. at 12-15.

¶5 The appellant timely filed an appeal to the Board and requested a hearing.

IAF, Tab 1 at 2. He did not dispute that he was absent during the period at issue,

but rather argued that some or all of this absence was protected under the FMLA.

Id. at 6. He raised the affirmative defense of reprisal for his prior Board appeals.

Id. Following a hearing, the administrative judge issued an initial decision

sustaining the removal action. ID at 1. Although she did not sustain the

January 2, 2018 specification, she sustained the remaining 39 specifications. 2 ID

at 4, 9. The administrative judge found that the appellant failed to prove his

claim that the agency violated his rights under FMLA because he had already

exhausted all the FMLA-protected leave to which he was entitled for that

12-month period. ID at 5. She also found that the appellant had not shown that

his prior Board appeals were a motivating factor in the removal. ID at 13. She

further found that the agency proved a nexus between the appellant’s misconduct

and the efficiency of the service, and deferred to the deciding official’s penalty

determination. ID at 14-16.

¶6 The appellant has timely filed a petition for review. PFR File, Tab 1. The

agency has filed a response, to which the appellant has replied. PFR File,

Tabs 5-6. 3

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly sustained the AWOL charge but applied the

incorrect burden to the related FMLA claim.

¶7 On review, the appellant does not dispute the administrative judge’s finding

that he was AWOL as charged. We see no reason to disturb this finding. ID

at 2-9. However, we modify the administrative judge’s finding that the agency

proved its AWOL charge to apply the correct standard. To prove an AWOL

charge, an agency must establish that an employee was absent and either his

absence was not authorized or his request for leave was properly denied. Little v.

Department of Transportation, 112 M.S.P.R. 224, ¶ 6 (2009); Boscoe v.

As observed by the administrative judge, although there are 39 total specifications,

there are two specifications 20 itemized. IAF, Tab 4 at 23; ID at 2 n.2. Thus, there are

40 total specifications. IAF, Tab 4 at 23-24; ID at 2 n.2.

The appellant’s reply was initially due on or before December 31, 2018, but the filing

deadline was extended due to the partial Government shutdown from December 22,

2018, through January 25, 2019. Thus, his reply was timely. We therefore find it

unnecessary to address his motion seeking to waive the time limit for his reply. PFR

File, Tab 7.

Department of Agriculture, 54 M.S.P.R. 315, 325 (1992). Thus, when FMLA is

implicated relative to an AWOL charge, the agency, not the appellant, must prove

that it complied with the FMLA as part of its overall burden of proving the

AWOL charge. Fairley v. U.S. Postal Service, 82 M.S.P.R. 588, 590-91 (1999).

Here, however, the administrative judge improperly shifted the burden of proof to

the appellant to prove his FMLA claim. ID at 5.

¶8 The FMLA allows an employee to take up to 12 weeks of leave per year,

paid or unpaid, for various purposes, including his own serious health condition

that renders him unable to perform the duties of his position. See 5 U.S.C.

§ 6382(a)(1)(D); 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)(4). The 12-month leave period “begins on the date an employee

first takes leave [under the FMLA] and continues for 12 months” and an

employee is not entitled to additional leave under the FMLA “until the previous

12-month period ends.” 5 C.F.R. § 630.1203(c).

¶9 The appellant was absent from work for 39 consecutive days, from

January 9 through March 8, 2018. IAF, Tab 28 at 26-27, 55. On March 14 and

April 3, 2018, the appellant indicated that his doctors would be submitting FMLA

paperwork to cover the illnesses he had been suffering since January 2018. IAF,

Tab 15 at 8, 12. In response, his first-line supervisor informed him that he could

not invoke FMLA again until 12 months had passed since he last invoked FMLA

beginning on April 11, 2017, and told him to contact human resources. IAF,

Tab 15 at 13-14, 16, Tab 28 at 20, 53. Thus, the appellant presented sufficient

evidence to trigger consideration of his absences under the FMLA and the agency

has the burden of proving it properly denied him FMLA leave in taking the

leave-based action against him. Fairley, 82 M.S.P.R. at 591.

¶10 The administrative judge found, and the appellant does not dispute, that he

had invoked FMLA coverage beginning April 11, 2017, and exhausted his

480 hours of FMLA-protected leave on July 17, 2017. ID at 5. Thus, she found

that the appellant was not eligible for FMLA coverage again until April 11, 2018,

and that all of the instances of AWOL on which his removal was based occurred

prior to this date. Id. We agree. The agency submitted evidence and argument to

prove that the appellant had exhausted his FMLA-protected leave and was not

eligible to invoke it again until April 2018. For example, a Human Resources

Specialist testified that the appellant used FMLA-protected leave from April 11,

2017, to July 17, 2017, and that he would not have been able to invoke it again

until a 12-month period had passed from the date he first invoked it, i.e.,

April 11, 2018. Hearing Transcript (HT) at 171-72, 174 (testimony of the Human

Resources Specialist). The agency also submitted the appellant’s leave records

which documented his FMLA-protected leave usage and exhaustion in 2017.

IAF, Tab 28 at 20-22, 55. Thus, as the administrative judge correctly found, the

appellant was not entitled to FMLA-protected leave while he was AWOL from

January 9 through March 8, 2018. ID at 4-5. Therefore, the agency met its

burden of showing that it complied with the FMLA as part of its overall burden of

proving the AWOL charge, and the administrative judge correctly sustained the

charge. 4

On review, the appellant states that the administrative judge did not consider a prior

miscalculation of his FMLA usage in 2016, which he argues is evidence of his first-line

supervisor’s bias. PFR File, Tab 1 at 7-8. He argues that the Human Resources

Specialist testified that the appellant had more FMLA time remaining but his supervisor

designated it AWOL instead. Id. at 7. However, this is not an accurate representation

of the testimony. The Human Resources Specialist only testified that the appellant took

FMLA-protected leave and regarding when such leave was exhausted in 2016 and 2017.

HT at 171-72 (testimony of the Human Resources Specialist). Moreover, the

administrative judge addressed the appellant’s use of FMLA-protected leave in 2016 in

the initial decision and detailed that the 2016 miscalculation was corrected and the

appellant was allowed to utilize his remaining hours of FMLA leave. ID at 5. The

appellant does not dispute the administrative judge’s findings regarding his FMLA

usage and exhaustion in 2017 as it relates to his AWOL charge.

The appellant abandoned or waived his affirmative defenses of disability

discrimination and retaliation for FMLA and equal employment opportunity

(EEO) activity.

¶11 Before the administrative judge, the appellant raised the affirmative defense

of retaliation for FMLA activity. IAF, Tab 19 at 4 . He also suggested that his

removal was the result of EEO retaliation and the agency’s failure to

accommodate a disability. Id. at 14, 16. However, he did not identify these

claims as issues in his prehearing statement. Id. at 4. The administrative judge

did not identify these discrimination and retaliation claims as issues for

adjudication in the prehearing conference summary. IAF, Tab 22 at 3. She did

not render findings on the appellant’s FMLA and disability discrimination claims

in the initial decision. ID at 9. As discussed below, we find that the appellant

has abandoned these previously raised affirmative defenses.

¶12 In Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-18, we set forth a

nonexhaustive list of factors for consideration when determining whether an

appellant will be deemed to have waived or abandoned a previously raised

affirmative defense. The factors include: (1) the thoroughness and clarity with

which the appellant raised his affirmative defense; (2) the degree to which the

appellant continued to pursue his affirmative defense in the proceedings below

after initially raising it; (3) whether the appellant objected to a summary of the

issues to be decided that failed to include the potential affirmative defense when

he was specifically afforded an opportunity to object and the consequences of his

failure were made clear; (4) whether the appellant raised his affirmative defense

or the administrative judge’s processing of the affirmative defense claim in his

petition for review; (5) whether the appellant was represented during the course

of his appeal before the administrative judge and on petition for review, and if he

was not, the level of knowledge of Board proceedings possessed by the appellant;

and (6) the likelihood that the presumptive abandonment of the affirmative

defense was the product of confusion, or misleading or incorrect information

provided by the agency or the Board. Id., ¶ 18.

¶13 Here, the appellant raised the FMLA reprisal affirmative defense in a single

sentence in a single pleading. IAF Tab 19 at 4. As to his EEO retaliation and

disability discrimination claims, he did not clearly identify them as issues to be

decided. Id. Although he referred to his requests for accommodation in his

prehearing submissions, he did not argue that his removal resulted from the

agency’s alleged denials of those requests. Id. at 14. Further, the appellant’s

representative appeared to disclaim that he was raising an EEO retaliation claim

at the hearing but instead asserted that his only purpose in introducing testimony

regarding the appellant’s EEO activity was to demonstrate “instances of

harassment.” HT at 239-40 (discussion on the record). The appellant had the

opportunity to object to the administrative judge’s prehearing conference

summary that included the issues to be determined at hearing; yet, despite

objecting to other portions of the prehearing conference summary, he did not

object to the summary of his affirmative defenses. IAF, Tab 22 at 3, Tab 23

at 4-5. The administrative judge warned the parties that, absent objection, no

issues would be accepted beyond those listed in the prehearing conference

summary. IAF, Tab 22 at 1.

¶14 Similarly, the appellant did not raise any argument on review regarding his

FMLA reprisal claim. PFR File, Tab 1. The administrative judge appears to have

made a finding that the appellant did not prove retaliation for EEO activity, but

she does not explain in the initial decision why she reached this finding despite

the appellant’s specific statement that he was not raising such a claim. ID at 13.

The appellant appears to dispute this finding on review, but falls short of

asserting that his removal was the result of EEO retaliation. PFR File, Tab 1 at 8,

14. Regarding the disability discrimination claim, the administrative judge found

that the appellant did not assert this affirmative defense below and thus did not

address this issue in the initial decision. ID at 7 n.4. While the appellant does

not explicitly contest this finding on review, he appears to argue that his

reasonable accommodation requests were denied by his supervisors. PFR File,

Tab 1 at 12-14.

¶15 Throughout this appeal, the appellant was represented by an attorney and

there is no evidence that his abandonment of these affirmative defenses was due

to confusion or misleading or incorrect information provided by the

administrative judge or the agency. As such, when weighing all these factors

together, it is clear that the appellant either did not raise or effectively abandoned

the affirmative defenses of disability discrimination and retaliation for his prior

EEO and FMLA activity, and we will not consider these issues further. Because

the appellant’s EEO claim was not properly before her, we vacate the initial

decision to the extent that it suggested the appellant did not prove this claim. ID

at 13.

We affirm the finding that the appellant failed to establish his affirmative defense

of reprisal for his prior Board appeals, as modified to apply the proper standard.

¶16 In finding that the appellant failed to prove his affirmative defense of

reprisal for filing prior Board appeals, the administrative judge analyzed the

appellant’s claim under the Warren standard. ID at 9-14; see Warren v.

Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986) (establishing the

general reprisal standard), superseded in part by statute as stated in Alarid v.

Department of the Army, 122 M.S.P.R. 600, ¶ 15 (2015) (explaining that the

Warren standard is inapplicable to claims subject to the burden-shifting standard

set forth in 5 U.S.C. § 1221(e)). However, the Warren standard does not apply to

claims in which an appellant asserted EEO retaliation. See Mattison v.

Department of Veterans Affairs, 123 M.S.P.R. 492, ¶ 8 (2016) (reflecting that the

Warren standard does not apply to cases in which an appellant alleges reprisal for

activity protected by Title VII). The appellant raised an affirmative defense of

retaliation for prior EEO activity in his underlying Board appeals. Specifically,

he asserted race discrimination and retaliation for filing an EEO complaint. Kone

v. Department of the Navy, MSPB Docket No. PH-0752-13-0217-I-1, Initial

Appeal File, Tab 4 at 13; 0217 Final Order at 3, 9. Thus, in the instant appeal,

the appellant must prove that his prior Board appeals, which included his

discrimination claims, were a “motivating factor” in his instant removal. See

Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 32 (stating that

the “motivating factor” standard applies in claims of retaliation for filing Board

appeals when the underlying Board appeal involved claims of discrimination and

retaliation for engaging in EEO activity).

¶17 Nonetheless, although the administrative judge discussed the general

Warren reprisal standard, she properly relied on the motivating factor standard .

ID at 9, 13. She concluded that the appellant had not shown that his prior Board

appeals were a motivating factor in this removal action. ID at 13. We clarify on

review that the Warren standard on which the administrative judge partially relied

is not applicable here. See Mattison, 123 M.S.P.R. 492, ¶ 8.

¶18 The administrative judge found that it was undisputed that the appellant

filed prior Board appeals and that his first-line supervisor, the proposing official,

and the deciding official acknowledged that they were aware of this prior

protected activity. ID at 9-10. However, she found that none of these agency

officials were involved in the discipline underlying those prior appeals. ID at 13.

She further found that the record fully supported the agency’s stated reason for

the removal, the appellant’s AWOL charge. Id. She thus concluded that the

appellant had not shown his prior Board appeals were a motivating factor in the

removal. Id. We agree. Additionally, we find that the administrative judge’s

reliance on the Warren standard does not change the outcome in this case because

the appellant’s claim would fail under either of the aforementioned standards. 5

Although the administrative judge discussed the Warren standard in advising the

appellant of his burdens of proof regarding his affirmative defenses, this error did not

harm the appellant. The Warren standard is higher than the motivating factor standard

for proving retaliation under Pridgen. In particular, in order to meet the “genuine

nexus” requirement under Warren, an appellant must prove, as relevant here, that the

adverse employment action was taken because of the protected activity. Mattison,

ID at 12-14. Thus, any error committed by the administrative judge in applying

this standard has not prejudiced the appellant’s rights. See Panter v. Department

of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error

that is not prejudicial to a party’s substantive rights provides no basis for reversal

of an initial decision).

¶19 On review, the appellant argues that the administrative judge’s analysis of

his reprisal claim for filing prior Board appeals reflects a misunderstanding of the

“cat’s paw” theory of liability. PFR File, Tab 1 at 9-10, 15. The appellant argues

that the administrative judge erred in finding that he did not demonstrate that his

first-line supervisor improperly influenced the proposing and deciding officials.

Id. He reasons that, under the “cat’s paw” theory, this proof is not required but

that the bias of the first-line supervisor was automatically imputed to the

proposing and deciding officials, regardless of whether they were directly

informed of, or influenced by, the bias. Id. at 9.

¶20 The U.S. Supreme Court has adopted the term “cat’s paw” to describe a

situation in which a particular management official, acting because of an

improper animus, influences the agency official charged with making the

employment decision at issue. Staub v. Proctor Hospital, 562 U.S. 411, 415-16

(2011). Although the administrative judge did not specifically refer to the “cat’s

paw” theory in her analysis, she did consider the appellant’s claim regarding the

first-line supervisor’s alleged bias against the appellant. 6 ID at 13.

¶21 As relevant here, she was not persuaded that the vague testimony of one of

the appellant’s coworkers that the first-line supervisor asked him about the

appellant reflected any retaliatory animus. ID at 12-13. The appellant argues that

123 M.S.P.R. 492, ¶ 8. When a statute prohibits retaliation “because of” protected EEO

activity, the employee’s claim is subject to a but-for causation standard. Pridgen,

2022 MSPB 31, ¶¶ 44-46. “But-for” causation is a higher burden than “motivating

factor” causation.” Id., ¶¶ 21 n.4, 22, 28.

To the extent the appellant has invoked the cat’s paw theory as to his disability

discrimination and EEO retaliation claims, we decline to address this argument. PFR

File, Tab 1 at 9-10, 15-16. As discussed above, these claims are not properly before us.

the administrative judge mischaracterized the testimony of his coworker. PFR

File, Tab 1 at 5-7. He argues that his coworker’s testimony was sufficiently

specific as to the timing of the conversation between him and the first-line

supervisor and as to the topic of discussion. Id. at 6-7. We are not persuaded.

¶22 The appellant’s coworker testified that, “right at the very beginning” of

when the first-line supervisor began supervising the appellant, the first-line

supervisor asked the coworker if he knew of the appellant’s “issues” and the

coworker responded that he had heard rumors about the appellant. HT at 197-98

(testimony of the coworker). He further testified that the first-line supervisor did

not ask about any other employees. Id. at 198. As the appellant observes, it is

possible to surmise that the conversation occurred sometime in early- to

mid-2016, based on the testimony of the appellant’s supervisor. PFR File, Tab 1

at 6; HT at 56 (testimony of the first-line supervisor). Nonetheless, we agree

with the administrative judge’s characterization of this testimony as vague and

her finding that it did not support a retaliatory motive by the first-line supervisor.

ID at 13. The only specific information the coworker was able to provide

regarding the substance of the first-line supervisor’s questions was that he asked

“do you know if [the appellant] even come[s] to the office.” HT at 197

(testimony of the coworker). This question does not reflect an improper motive.

Rather, it appears related to the appellant’s attendance problems, which the

appellant’s first-line supervisor testified “started within a few months within

[him] becoming a supervisor.” HT at 60 (testimony of the first-line supervisor).

In fact, the supervisor issued the appellant a letter of reprimand for an unexcused

absence on August 10, 2016. HT at 60-61 (testimony of the first-line supervisor);

IAF, Tab 4 at 34-36. Thus, contrary to the appellant’s arguments on review, we

find that his coworker’s testimony does not evidence retaliatory intent on the part

of his first-line supervisor. PFR File, Tab 1 at 7.

¶23 We are also not persuaded that the fact that the appellant’s first-line

supervisor read the appellant’s file is evidence of retaliatory motive. Id.; HT

at 56 (testimony of the first-line supervisor). He also testified that he read the

files of all his subordinates. HT at 56-57 (testimony of the first-line supervisor).

Thus, we discern no evidence of retaliatory motive. Because the administrative

judge properly found that the appellant’s first-line supervisor had no motive to

retaliate against the appellant based on his prior Board appeals, it follows that

there is no motive to impute to the proposing and deciding officials. As such, the

administrative judge correctly found that the appellant had not shown that his

prior Board appeals were a motivating factor in his removal. ID at 13-14.

The administrative judge correctly found that the penalty of removal was

reasonable.

¶24 On review, the appellant argues that the deciding official and administrative

judge failed to consider provocation as a mitigating factor and that the penalty of

removal can thus not be sustained. 7 PFR File, Tab 1 at 17-18, Tab 6 at 6-7.

Specifically, he argues that a hostile work environment created by his first-line

supervisor, in light of his medical conditions and the failure of the agency to

grant his reasonable accommodation request, should have been considered as a

mitigating factor because the circumstances provoked his AWOL status. PFR

File, Tab 1 at 17. The administrative judge addressed similar arguments below in

sustaining the agency’s charge. Specifically, she considered but rejected the

appellant’s claim that he was medically unable to work during the AWOL period.

ID at 6-8. She concluded that the appellant’s medical documentation did not

support his argument that he was incapacitated. ID at 8. The appellant does not

On review, the appellant also asserts his provocation argument as an affirmative

defense to his removal. PFR File, Tab 1 at 8-9, Tab 6 at 5-6. We decline to consider

this claim. First, he did not raise this argument below, IAF, Tab 1 at 6, Tab 19 at 4, and

may not now raise it on review, see Banks v. Department of the Air Force, 4 M.S.P.R.

268, 271 (1980) (finding that the Board will not consider an argument raised for the

first time in a petition for review absent a showing that it is based on new and material

evidence not previously available despite the party’s due diligence); IAF, Tab 22 at 1-3,

Tab 23 at 4-5. Moreover, this provocation argument is more appropriately addressed as

part of the Douglas factor penalty determination analysis. See Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305 (1981) (identifying, among other mitigating

factors, any provocation by others involved in the matter).

dispute this finding on review. In light of the administrative judge’s

well-reasoned finding that the appellant was not incapacitated, we are not

persuaded that his new claim of “provocation,” based on his supervisor’s alleged

harassment, warrants mitigation. If the appellant was not incapacitated, he was

obligated to report to work.

¶25 When, as here, the agency’s charge has been sustained, the Board will

review an agency-imposed penalty only to determine if the agency considered all

of the relevant factors set forth in Douglas v. Veterans Administration,

5 M.S.P.R. 280, 305-06 (1981), and exercised management discretion within

tolerable limits of reasonableness. 8 Archerda v. Department of Defense,

121 M.S.P.R. 314, ¶ 25 (2014). In determining whether the selected penalty is

reasonable, the Board gives due deference to the agency’s discretion in exercising

its managerial function of maintaining employee discipline and efficiency. Id.

The Board will modify a penalty only when it finds that the agency failed to

weigh the relevant factors or that the penalty the agency imposed clearly

exceeded the bounds of reasonableness. Id.

¶26 The administrative judge found that the deciding official properly

considered the mitigating factors and determined that the penalty of removal was

within the tolerable limits of reasonableness. ID at 14-16. In light of the above,

we agree with the administrative judge that the deciding official correctly

weighed the relevant Douglas factors and that the penalty of removal for being

AWOL for 39 consecutive days was reasonable. See, e.g., McCauley v.

Department of the Interior, 116 M.S.P.R. 484, ¶ 14 (2011) (finding that a penalty

of removal for more than 20 consecutive workdays of AWOL did not exceed the

tolerable limits of reasonableness); Foreman v. U.S. Postal Service, 89 M.S.P.R.

328, ¶ 17 (2001) (finding that removal is reasonable for 16 days of AWOL);

Maddux v. Department of the Air Force, 68 M.S.P.R. 644, 646 (1995) (finding

In Douglas, 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of factors

relevant to the penalty determination in adverse actions.

that removal is a reasonable penalty for approximately 3 weeks of AWOL, despite

the fact that there were mitigating factors, including the employee’s length of

service and his personal problems).

NOTICE OF APPEAL RIGHTS 9

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.

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).

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.

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. 10 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